Exhibit F – Diaz-Balart v. Scott case files - The Florida Senate

censusvalidator.blob.core.windows.net

Exhibit F – Diaz-Balart v. Scott case files - The Florida Senate

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:10-cv-23968-UU

CORRINE BROWN and MARIO DIAZ-BALART,

v.

Plaintiffs,

STATE OF FLORIDA, CHARLIE CRIST, in

his official capacity as Governor ofthe State of

Florida, THE FLORIDA HOUSE OF

REPRESENTATIVES, and THE FLORIDA

SENATE,

Defendants.

EXHIBIT

I F


DOCKET

SHEET


Case: 1:10-cv-23968-UU As of: 03/09/201111:19AM EST:::J 1of10D

U.S. District Court

Southern District of Florida (Miami)

CIVIL DOCKET FOR CASE #: 1:10-cv-23968-UU

Brown et al v. State ofFlorida et al

Assigned to: Judge Ursula Ungaro

Referred to: Magistrate Judge Andrea M. Simonton

Cause: 28:2201 Constitutionality ofState Statute(s)

Plaintiff

Corrine Brown

Plaintiff

Mario Diaz Balart

v.

Intervenor Plaintiff

Florida House ofRepresentatives

V.

Defendant

State ofFlorida

Defendant

Florida House ofRepresentatives

Defendant

AMS

Date Filed: 11/03/2010

Jury Demand: None

Nature of Suit: 950 Constitutional - State

Statute

Jurisdiction: Federal Question

represented by Stephen Michael Cody

Stephen Cody

800 S Douglas Road

Suite 850

Coral Gables, FL 33134-2088

305-416-3135

Fax: 416-3153

Email: stcody@stepbencody.com

ATTORNEYTO BE NOTICED

represented by Stephen Michael Cody

(See above for address)

ATTORNEYTO BE NOTICED

represented by Allen C. Winsor

Gray Robinson

301 S Bronougb Street

Suite 600

Tallahassee, FL 32301

850-577-9090

Fax: 577-3311

Email: awinsor@lUay-robinson.com

ATTORNEYTO BE NOTICED

represented by Jonathan A. Glogau

Attorney General Office

Department ofLegal Affairs

The Capitol PL-01

Tallahassee, FL 32399-1050

850-414-3300

Fax: 488-6589

Email: jon.glogau@myfloridalegal.com

LEADATTORNEY

ATTORNEYTO BE NOTICED


V.

Case: 1:1 0-cv-23968-UU As of: 03/09/2011 11 :19 AM ESTD 3 of 10D

Intervenor Defendant

Leon W Russell

Intervenor Defendant

Patricia T Spencer

represented by Eric R. Haren

Jenner &Block, LLP

1099 New York Avenue, NW

Washington, DC 20001

202-639-6000

Email: eharen@jenner.com

PRO HAC VICE

ATTORNEYTO BE NOTICED

J. Gerald Hebert

191 Somervelle Street

#405

Alexandria, VA 22304

703-628-4673

Fax: 567-5876

Email: GHebert@campaignlegalcenter.org

PRO HAC VICE

ATTORNEYTO BE NOTICED

Michael B. DeSanctis

Jenner &Block, LLP

1099 New York Avenue, NW

Washington, DC 20001

202-639-6000

Email: mdesauctjs@jenner.com

PRO HAC VICE

ATTORNEYTO BE NOTICED

Paul M. Smith

Jenner &Block, LLP

1099 New York Avenue, NW

Washington, DC 20001

202-639-6000

Fax: 639-6066

Email: psmjth@jenner.com

PRO HAC VICE

ATTORNEYTO BE NOTICED

Stephen Frederick Rosenthal

Podhurst Orseck Josefsberg et al

City National Bank Building

25 W Flagler Street

Suite 800

Miami, FL 33130-1780

305-358-2800

Fax: 305-358-2382

Email: srosenthal@podhurst.com

ATTORNEYTO BE NOTICED

represented by Eric R. Haren

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

J. Gerald Hebert

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED


Case: 1:10-cv-23968-UU As of: 03/09/2011 11 :19 AM EST::J 4 of 10::J

Intervenor Defendant

Carolyn H Collins

Intervenor Defendant

Edwin Enciso

Intervenor Defendant

Stephen Easdale

Michael B. DeSanctis

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Paul M. Smith

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Stephen Frederick Rosenthal

(See above for address)

ATTORNEYTO BE NOTICED

represented by Eric R. Haren

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

J. Gerald Hebert

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Michael B. DeSanctis

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Paul M. Smith

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Stephen Frederick Rosenthal

(See above for address)

ATTORNEYTO BE NOTICED

represented by Eric R. Haren

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Michael B. DeSanctis

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Paul M. Smith

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Stephen Frederick Rosenthal

(See above for address)

ATTORNEYTO BE NOTICED

represented by Eric R. Haren

(See above for address)

PRO HAC VICE


Case: 1:10-cv-23968-UU As of: 03/09/2011 11 :19 AM EST] 5 of 100

Intervenor Defendapt

Florida State Conference ofNAACP

Branches

Intervenor Defendant

Democracia Ahora

ATTORNEYTO BE NOTICED

Michael B. DeSanctis

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Paul M. Smith

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Stephen Frederick Rosenthal

(See above for address)

ATTORNEYTO BE NOTICED

represented by Eric R. Haren

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

J. Gerald Hebert

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Michael B. DeSanctis

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Paul M. Smith

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Stephen Frederick Rosenthal

(See above for address)

ATTORNEYTO BE NOTICED

represented by Eric R. Haren

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

J. Gerald Hebert

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Michael B. DeSanctis

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Paul M. Smith

(See above for address)

PRO HAC VICE

ATTORNEYTO BE NOTICED

Stephen Frederick Rosenthal

(See above for address)


001


Case 1:10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 2 of9

CORRINE BROWN and MARIO DIAZ­

BALART,

vs.

Plaintiffs,

STATE OF FLORIDA, CHARLIE CRIST, in

his official capacity as Governor ofthe State of

Florida, THE FLORIDA HOUSE OF

REPRESENTATIVES, and THE FLORIDA

SENATE,

Defendants.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs Corrine Brown and Mario Diaz-Balart, by and through their undersigned counsel, sue

Defendants, the State ofFlorida, Charlie Crist, in his official capacity as the Governor ofthe State of

Florida, the Florida House ofRepresentatives, and the Florida Senate and as grounds therefore would

show:

1. Plaintiffs bring this action seeking a declaratory judgment that Article III, Section 20 of

the Florida Constitution is unconstitutional as well as injunctive reliefprohibiting the enforcement of

Article III, Section 20 ofthe Florida Constitution.

2. This case is an action for declaratory and injunctive reliefpursuant to 28 U.S.C. §§ 2201-

2202 and Federal Rule ofCivil Procedure 57.


Case 1:10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 30f9

PARTIES

3. Defendant State ofFlorida is one ofthe several states ofthe United States ofAmerica.

The State ofFlorida is named as a party because this lawsuit challenges the constitutionality ofArticle

III, Section 20 ofthe Florida Constitution.

4. Charlie Crist is the Governor ofthe State ofFlorida and is sued in his official capacity

only. Governor Crist is the chiefexecutive officer ofthe State ofFlorida whose duties include

approving or vetoing a congressional redistricting plan adopted by the Florida Legislature after its

receipt ofCensus data following the 2010 decennial Census.

5. The Florida House ofRepresentatives is one oftwo chambers ofthe Florida Legislature.

Under the Florida Constitution, bills enacted by the Legislature, including a Congressional

reapportionment plan, must be approved by a majority ofboth chambers ofthe Florida Legislature. A

vetoed Congressional reapportionment plan must be overturned by an extra-ordinary vote ofthe Florida

House and the Florida Senate.

6. The Florida Senate is upper chamber ofthe Florida Legislature. A Congressional

redistricting plan must receive a majority ofthe votes case in Senate, as well as an extra-ordinary vote of

the Senate to override a gubernatorial veto.

7. PlaintiffMario Diaz-Balart is a citizen ofthe State ofFlorida and is registered to vote in

Miami-Dade County. Since 2003, Diaz-Balart has represented the citizens ofCongressional District 25

in the United States House ofRepresentatives. Hispanics comprise more than 50 percent ofthe voting­

age population in Congressional District 25. In January 2011, PlaintiffDiaz-Balart will be representing

the residents ofFlorida District 21. Hispanics comprise more than 50 percent ofthe voting-age

population in Congressional District 21. PlaintiffDiaz-Balart is a member ofa protected language

2


Case 1:10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 4 of 9

minority under the Voting Rights Act of 1965, as amended. PlaintiffDiaz-Balart intends to run for

Congress in 2012.

8. PlaintiffCorrine Brown is a citizen ofthe State ofFlorida and is registered to vote in

Duval County. Since 1993, Brown has represented the citizens ofCongressional District 3 in the United

States House ofRepresentatives. African-Americans comprise nearly halfofthe voting-age population

in Congressional District 3. PlaintiffBrown is a member ofa protected racial minority under the Voting

Rights Act of 1965, as amended. PlaintiffBrown intends to run for Congress in 2012.

JURISDICTION AND VENUE

9. The Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331 and

1346(a)(2) because it arises under the Constitution and laws ofthe United States.

10. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2), because no real

property is involved in this action and the State ofFlorida is situated in this judicial district.

FACTS

11. On September 28,2007, the Florida Department ofState, Division ofElections, approved

an initiative petition prepared by FairDistrictsFlorida.org for circulation that establishes new criteria for

Congressional redistricting. The Congressional Petition obtained the necessary number ofsignatures

and was certified for placement on the November 2010 general election ballot as Amendment 6.

12. At the general election held in Florida on November 2,2010, Amendment 6 was

approved by more than 60 percent ofthe voters casting ballots on the question.

13. Upon its receipt ofmore than 60 percent ofthe votes cast, Amendment 6 became Article

III, section 20 ofthe Florida Constitution, which provides:

3


Case 1:10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 5 of9

Section 20. STANDARDS FOR ESTABLISHING CONGRESSIONAL

DISTRICT BOUNDARIES

In establishing Congressional district boundaries:

(1) No apportionment plan or individual district shall be drawn with the

intent to favor or disfavor a political party or an incumbent; and districts

shall not be drawn with the intent or result ofdenying or abridging the

equal opportunity ofracial or language minorities to participate in the

political process or to diminish their ability to elect representatives oftheir

choice; and districts shall consist ofcontiguous territory.

(2) Unless compliance with the standards in this subsection conflicts with

the standards in subsection (1) or with federal law, districts shall be as

nearly equal in population as is practicable; districts shall be compact; and

districts shall, where feasible, utilize existing political and geographical

boundaries.

(3) The order in which the standards within sub-sections (1) and (2) of

this section are set forth shall not be read to establish any priority ofone

standard over the other within that subsection.

See, Adv. Gp. to Att'y Gen. re Standards/or Establishing Legislative Dist. Boundaries, 2 So. 3d 175

(Fla. 2009) for the text ofthe language ofAmendment 6.

14. Section 5 ofthe VRA, which applies to changes in electoral practices and procedures in

five Florida counties (Collier, Hardy, Hendry, Hillsborough, and Monroe), prohibits changes that "lead

to retrogression in the position ofracial minorities with respect to the effective exercise ofthe electoral

franchise." Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (quoting Miller v. Johnson, 515 U.S. 900, 926

(1995)). Whether a change will result in retrogression "depends on an examination ofall the relevant

circumstances," including "the extent ofthe minority group's opportunity to participate in the political

process." Id. at 479.

15. Section 5 ofthe Voting Rights Act of 1965, as amended, ensures that no voting change

"has the purpose or will have the effect ofdiminishing the ability ofany citizen ofthe United States on

account ofrace or color ... to elect their preferred candidates ofchoice." 42 U.S.C. § 1973c(b). Section

4


Case 1:10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 6 of9

5 does not guarantee equality, but merely prevents backsliding, or "retrogression." The benchmark for

comparison is the status quo, and not the ideal ofequality.

16. One component ofthe opportunity to participate in the political process is the

preservation ofminority incumbents in positions oflegislative influence and leadership. Id. at 483.

Thus, the VRA requires the Legislature to weigh incumbency when it assesses compliance with Section

5, and permits it to favor minority incumbents as a means ofcompliance.

17. The Legislature will not be fully able to assess and protect racial minorities' opportunity

to participate in the political process unless it assesses and protects the achievements ofminority

incumbents. Because the conflicting requirements in subsection (1) ofArticle III, section 20 claim equal

dignity in the hierarchy ofrequirements, the constitutional amendment creates an irreconcilable

contradiction. This internal conflict presents a facial conflict with Section 5 ofthe Voting Rights Act of

1965, as amended.

18. There is an actual controversy ofsufficient immediacy and concreteness relating to the

legal rights and duties ofthe Legislature in drawing Congressional districts to warrant reliefunder 28

U.S.C. § 2201.

19. The harm to the citizens and voters in the State ofFlorida, including Plaintiffs, is

sufficiently real and/or imminent to warrant the issuance ofa conclusive declaratory judgment usefully

clarifying the legal relations ofthe parties.

20. Plaintiffs have retained the undersigned counsel and have agreed to pay him a reasonable

fee for his services.

herein.

COUNT I - VIOLATION OF THE SUPREMACY AND DUE PROCESS CLAUSES

OF THE UNITED STATES CONSTITUTION

21. Plaintiffs repeat and realleges the allegations ofparagraphs 1 through 20 as ifset forth

5


Case 1:10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 7 of9

22. The Supremacy Clause ofthe Constitution mandates that "[t]his Constitution, and the

Laws ofthe United States which shall be made in Pursuance thereof... shall be the supreme Law ofthe

Land ... any Thing in the Constitution or Laws ofany State to the Contrary notwithstanding." U.S.

Const., art. VI, cl. 2.

23. The first clause ofthe Fourteenth Amendment to the United States Constitution provides:

Emphasis supplied.

Section. 1. All persons born or naturalized in the United States and subject

to the jurisdiction thereof, are citizens ofthe United States and ofthe State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities ofcitizens ofthe United States; nor

shall any State deprive any person oflife, liberty, orproperty, without due

process oflaw; nor deny to any person within its jurisdiction the equal

protection ofthe laws.

24. The United States Constitution delegates the task ofsetting the time, place, and manner

ofsetting Congressional elections to the Legislatures ofeach ofthe several States.

25. Article I, Section 4, Clause 1 specifically provides:

The Times, Places and Manner ofholding Elections for Senators and

Representatives, shall be prescribed in each State by the Legislature

thereof; but the Congress may at any time by Law make or alter such

Regulations, except as to the Places ofchusing [sic] Senators.

26. The authority to draw Congressional Districts falls within the ambit of"time, place and

manner" authority found in Article I, Section 4, Clause 1. See Vieth v. Jubelirer, 541 U.S. 267, 275

(2004) (plurality opinion) ("Article I, § 4, while leaving in state legislatures the initial power to draw

districts for federal elections, permitted Congress to 'make or alter' those districts ifit wished.")

27. Congress has exercised the authority reserved to in Article I, Section 4, Clause 1. In The

Apportionment Act of 1842,5 Stat. 491, Congress provided that Representatives must be elected from

single-member districts "composed ofcontiguous territory." Congress again imposed these requirements

in The Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts "contai[n] as

6


Case 1:10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 8 of9

nearly as practicable an equal number ofinhabitants," 17 Stat. 28, § 2. In The Apportionment Act of

1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements ofcontiguity,

compactness, and equality ofpopulation were repeated in the 1911 apportionment legislation, 37 Stat.

13, but were not thereafter continued. Today, only the single member-district requirement remains. See

2 U. S. C. § 2c.

28. Article III, Section 20 ofthe Florida Constitution represents an impermissible effort by

Florida to limit the discretion directly delegated by the United States Constitution to the Florida

Legislature.

29. Under Article 1, Section 4, Clause 1, the discretion to set the time, place, and manner of

holding Congressional elections belongs to the Florida Legislature. That discretion may only be limited

or circumscribed by the Congress and not by way ofan amendment to the Florida Constitution.

30. Article III, Section 20 may not immediately and unconditionally be enforced unless and

until Congress authorizes circumscription ofthe Florida Legislature's power to set the time, place and

manner ofCongressional elections, including drawing districts.

31. Accordingly, Article III, Section 20 ofthe Florida Constitution violates the Supremacy

Clause and is invalid.

1983.

32. A violation ofthe United States Constitution may be challenged pursuant to 42 U.S.C. §

COUNT II - PREEMPTION UNDER FEDERAL LAW

33. Plaintiffs repeat and reallege the allegations ofparagraphs 1 through 20 and 22 through

32 as ifset forth herein.

34. Article III, Section 20 ofthe Florida Constitution is preempted by Article I, Section 4,

Clause 1 ofthe United States Constitution.

7


Case 1: 10-cv-23968-UU Document 1 Entered on FLSD Docket 11/03/2010 Page 9 of 9

35. Article III, Section 20 ofthe Florida Constitution is also preempted by Section 5 ofthe

Voting Rights Act of 1965, as amended, and the regulations promulgated thereunder.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court:

A. Enter an order declaring that Article III, Section 20 ofthe Florida Constitution is

unconstitutional on its face as an attempt to circumscribe the Constitutional discretion that devolves

from Article I, Section 4, Clause 1 ofthe United States Constitution to the Florida Legislature to set the

time, place, and manner ofCongressional elections, including the drawing ofCongressional districts;

B. Enter an order declaring that Article III, Section 20 ofthe Florida Constitution is

unconstitutional on its face as being in direct violation ofSection 5 ofthe Voting Rights Act of 1965, as

amended, and the regulations promulgated thereunder.

B. Enjoin Defendants and any other agency or official acting on behalfofDefendants from

enforcing Article III, Section 20 ofthe Florida Constitution;

C. Award Plaintiffs reasonable attorney's fees and costs pursuant to 42 U.S.C. § 1988 by

and through 42 U.S.C. § 1983 and 28 U.S.C. § 1343; and

D. Grant such other reliefas the Court deems just and proper.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

8


002


003


Case 1:10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 1 of 8

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs Mario Diaz-Balart and Corrine Brown, by and through their undersigned counsel, sue

Defendant. the State ofFlorida, and as grounds therefore would show:

1. Plaintiffs bring this action seeking a declaratory judgment that Article III, Section 20 of

the Florida Constitution is unconstitutional as well as injunctive reliefprohibiting the enforcement of

Article III, Section 20 ofthe Florida Constitution.

2. This case is an action for declaratory and injunctive reliefpursuant to 28 U.S.C. §§ 2201-

2202 and Federal Rule ofCivil Procedure 57.

PARTIES

3. Defendant State ofFlorida is one ofthe several states ofthe United States ofAmerica.

The State ofFlorida is named as a party because this lawsuit challenges the constitutionality ofArticle

III, Section 20 ofthe Florida Constitution.

4. PlaintiffMario Diaz-Balart is a citizen ofthe State ofFlorida and is a resident ofand

registered to vote in Miami-Dade County. Since 2003, Diaz-Balart has represented the citizens of

Congressional District 25 in the United States House ofRepresentatives. Hispanics comprise more than


Case 1:10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 2 of 8

50 percent ofthe voting-age population in Congressional District 25. In January 2011, PlaintiffDiaz­

Balart will be representing the residents ofFlorida District 21. Hispanics comprise more than 50 percent

ofthe voting-age population in Congressional District 21. PlaintiffDiaz-Balart is a member ofa

protected language minority under the Voting Rights Act of 1965, as amended. PlaintiffDiaz-Balart

intends to run for Congress in 2012.

5. PlaintiffCorrine Brown is a citizen ofthe State ofFlorida and is a resident ofand

registered to vote in Duval County. Since 1993, Brown has represented the citizens ofCongressional

District 3 in the United States House ofRepresentatives. African-Americans comprise nearly halfofthe

voting-age population in Congressional District 3. PlaintiffBrown is a member ofa protected racial

minority under the Voting Rights Act of 1965, as amended. PlaintiffBrown intends to run for Congress

in 2012.

JURISDICTION AND VENUE

6. The Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331 and

1346(a)(2) because it arises under the Constitution and laws ofthe United States.

7. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2), because no real

property is involved in this action and the State ofFlorida is situated in this judicial district.

FACTS

8. On September 28,2007, the Florida Department ofState, Division ofElections, approved

an initiative petition prepared by FairDistrictsFlorida.org for circulation that establishes new criteria for

Congressional redistricting. The Congressional Petition obtained the necessary number ofsignatures

and was certified for placement on the November 2010 general election ballot as Amendment 6.

9. At the general election held in Florida on November 2,2010, Amendment 6 was

approved by more than 60 percent ofthe voters casting ballots on the question.

2


Case 1:10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 3 of 8

10. Upon its receipt ofmore than 60 percent ofthe votes cast, Amendment 6 became Article

III, section 20 ofthe Florida Constitution, which provides:

Section 20. STANDARDS FOR ESTABLISHING CONGRESSIONAL

DISTRICT BOUNDARIES

In establishing Congressional district boundaries:

(1) No apportionment plan or individual district shall be drawn with the

intent to favor or disfavor a political party or an incumbent; and districts

shall not be drawn with the intent or result ofdenying or abridging the

equal opportunity ofracial or language minorities to participate in the

political process or to diminish their ability to elect representatives oftheir

choice; and districts shall consist ofcontiguous territory.

(2) Unless compliance with the standards in this subsection conflicts with

the standards in subsection (1) or with federal law, districts shall be as

nearly equal in population as is practicable; districts shall be compact; and

districts shall, where feasible, utilize existing political and geographical

boundaries.

(3) The order in which the standards within sub-sections (1) and (2) of

this section are set forth shall not be read to establish any priority ofone

standard over the other within that subsection.

See, Adv. Gp. to Att'y Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d 175

(Fla. 2009) for the text ofthe language ofAmendment 6.

11. Section 5 ofthe VRA, which applies to changes in electoral practices and procedures in

five Florida counties (Collier, Hardy, Hendry, Hillsborough, and Monroe), prohibits changes that "lead

to retrogression in the position ofracial minorities with respect to the effective exercise ofthe electoral

franchise." Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (quoting Miller v. Johnson, 515 U.S. 900, 926

(1995)). Whether a change will result in retrogression "depends on an examination ofall the relevant

circumstances," including "the extent ofthe minority group's opportunity to participate in the political

process." Id. at 479.

12. Section 5 ofthe Voting Rights Act of 1965, as amended, ensures that no voting change

"has the purpose or will have the effect ofdiminishing the ability ofany citizen ofthe United States on

3


Case 1:10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 4 of 8

account ofrace or color ... to elect their preferred candidates ofchoice." 42 U.S.C. § 1973c(b). Section

5 does not guarantee equality, but merely prevents backsliding, or "retrogression." The benchmark for

comparison is the status quo, and not the ideal ofequality.

13. One component ofthe opportunity to participate in the political process is the

preservation ofminority incumbents in positions oflegislative influence and leadership. Id. at 483.

Thus, the VRA requires the Legislature to weigh incumbency when it assesses compliance with Section

5, and permits it to favor minority incumbents as a means ofcompliance.

14. The Legislature will not be fully able to assess and protect racial minorities' opportunity

to participate in the political process unless it assesses and protects the achievements ofminority

incumbents. Because the conflicting requirements in subsection (1) ofArticle III, section 20 claim equal

dignity in the hierarchy ofrequirements, the constitutional amendment creates an irreconcilable

contradiction. This internal conflict presents a facial conflict with Section 5 ofthe Voting Rights Act of

1965, as amended.

15. There is an actual controversy ofsufficient immediacy and concreteness relating to the

legal rights and duties ofthe Legislature in drawing Congressional districts to warrant reliefunder 28

U.S.C. § 2201.

16. The harm to the citizens and voters in the State ofFlorida, including Plaintiffs, is

sufficiently real and/or imminent to warrant the issuance ofa conclusive declaratory judgment usefully

clarifying the legal relations ofthe parties.

17. Plaintiffs have retained the undersigned counsel and have agreed to pay him a reasonable

fee for his services.

4


Case 1: 10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 5 of 8

herein.

COUNT I - VIOLATION OF THE SUPREMACY AND DUE PROCESS CLAUSES

OF THE UNITED STATES CONSTITUTION

18. Plaintiffs repeat and realleges the allegations ofparagraphs 1 through 17 as ifset forth

19. The Supremacy Clause ofthe Constitution mandates that "[t]his Constitution, and the

Laws ofthe United States which shall be made in Pursuance thereof... shall be the supreme Law ofthe

Land ... any Thing in the Constitution or Laws ofany State to the Contrary notwithstanding." U.S.

Const., art. VI, cl. 2.

20. The first clause ofthe Fourteenth Amendment to the United States Constitution provides:

Emphasis supplied.

Section. 1. All persons born or naturalized in the United States and subject

to the jurisdiction thereof, are citizens ofthe United States and ofthe State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities ofcitizens ofthe United States; nor

shall any State deprive any person oflife, liberty, orproperty, without due

process oflaw; nor deny to anyperson within its jurisdiction the equal

protection ofthe laws.

21. The United States Constitution delegates the task ofsetting the time, place, and manner

ofsetting Congressional elections to the Legislatures ofeach ofthe several States.

22. Article I, Section 4, Clause 1 specifically provides:

The Times, Places and Manner ofholding Elections for Senators and

Representatives, shall be prescribed in each State by the Legislature

thereof; but the Congress may at any time by Law make or alter such

Regulations, except as to the Places ofchusing [sic] Senators.

23. The authority to draw Congressional Districts falls within the ambit of"time, place and

manner" authority found in Article I, Section 4, Clause 1. See Vieth v. Jubelirer, 541 U.S. 267, 275

(2004) (plurality opinion) ("Article I, § 4, while leaving in state legislatures the initial power to draw

districts for federal elections, permitted Congress to 'make or alter' those districts ifit wished.")

5


Case 1:10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 6 of 8

24. Congress has exercised the authority reserved to in Article I, Section 4, Clause 1. In The

Apportionment Act of 1842,5 Stat. 491, Congress provided that Representatives must be elected from

single-member districts "composed ofcontiguous territory." Congress again imposed these requirements

in The Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts "contai[n] as

nearly as practicable an equal number ofinhabitants," 17 Stat. 28, § 2. In The Apportionment Act of

1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements ofcontiguity,

compactness, and equality ofpopulation were repeated in the 1911 apportionment legislation, 37 Stat.

13, but were not thereafter continued. Today, only the single member-district requirement remains. See

2 U. S. C. § 2c.

25. Article III, Section 20 ofthe Florida Constitution represents an impermissible effort by

Florida to limit the discretion directly delegated by the United States Constitution to the Florida

Legislature.

26. Under Article 1, Section 4, Clause 1, the discretion to set the time, place, and manner of

holding Congressional elections belongs to the Florida Legislature. That discretion may only be limited

or circumscribed by the Congress and not by way ofan amendment to the Florida Constitution.

27. Article III, Section 20 may not immediately and unconditionally be enforced unless and

until Congress authorizes circumscription ofthe Florida Legislature's power to set the time, place and

manner ofCongressional elections, including drawing districts.

28. Accordingly, Article III, Section 20 ofthe Florida Constitution violates the Supremacy

Clause and is invalid.

1983.

29. A violation ofthe United States Constitution may be challenged pursuant to 42 U.S.C. §

6


Case 1:10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 7 of 8

COUNT II - PREEMPTION UNDER FEDERAL LAW

30. Plaintiffs repeat and reallege the allegations ofparagraphs 1 through 17 and 19 through

29 as ifset forth herein.

31. Article III, Section 20 ofthe Florida Constitution is preempted by Article I, Section 4,

Clause 1 ofthe United States Constitution.

32. Article III, Section 20 ofthe Florida Constitution is also preempted by Section 5 ofthe

Voting Rights Act of 1965, as amended, and the regulations promulgated thereunder.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court:

A. Enter an order declaring that Article III, Section 20 ofthe Florida Constitution is

unconstitutional on its face as an attempt to circumscribe the Constitutional discretion that devolves

from Article I, Section 4, Clause 1 ofthe United States Constitution to the Florida Legislature to set the

time, place, and manner ofCongressional elections, including the drawing ofCongressional districts;

B. Enter an order declaring that Article III, Section 20 ofthe Florida Constitution is

unconstitutional on its face as being in direct violation ofSection 5 ofthe Voting Rights Act of 1965, as

amended, and the regulations promulgated thereunder;

C. Enjoin Defendant and any other agency or official acting on behalfofDefendant from

enforcing Article III, Section 20 ofthe Florida Constitution;

D. Award Plaintiffs reasonable attorney's fees and costs pursuant to 42 U.S.c. § 1988 by

and through 42 U.S.C. § 1983 and 28 U.S.C. § 1343; and

E. Grant such other relief as the Court deems just and proper.

7


Case 1: 10-cv-23968-UU Document 3 Entered on FLSD Docket 11/08/2010 Page 8 of 8

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

8

Fla. Bar No. 33468


004


005


I

Case 1: 10-cv-23968-UU Document 5 Entered on FLS D Docket 11/18/2010 Page 1 of 3

CORRINE BROWN, et aI.,

v.

Plaintiff,

STATE OF FLORID, et a1.,

Defendants,

-----------------------------------------------1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 10-23968-CIV-UNGARO

ORDER SETTING INITIAL PLANNING AND SCHEDULING CONFERENCE

I

THIS CAUSE is hereby set for an Initial Planning and Scheduling Conference before the

Honorable Ursula Ungaro, at the United States Courthouse, 400 N. Miami Avenue, 12th Floor,

Courtroom 4, Miami, Florida, on Friday, FEBRUARY 4, 2011 at 10:00 A.M.

Counsel for the Plaintiff(s) is instructed to provide copies of this order to all counsel of

record and to any unrepresented parties that have appeared in the case. Pursuant to Fed.R.Civ.P.

26(f) and Local Rule 16.1B, the parties are jointly responsible for conferring to develop a proposed

discovery plan; thereafter, the parties are to file and serve a Joint Planning and Scheduling Report,

together with a proposed Scheduling Order, and an attached service list including the parties' names,

phone numbers and facsimile numbers. The report and proposed ordermust be filed by JANUARY

21,2011 and must recite the following:

1. A plain statement ofthe nature ofthe claim and any counterclaims; cross-claims, or

third-party claim, including the amount of damages claimed and any other relief

sought.

2. A brief summary ofthe facts which are uncontested or which can be stipulated to

without discovery.


006


007


Case 1:10-cv-23968-UU Document 7 Entered on FLSD Docket 11/22/2010 Page 1 of 1

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

NOTICE OF STRIKING DE 6

Plaintiffs hereby give notice ofstriking ProofOfService, Docket Entry 6 because it referenced

Plaintiffs as the served party rather than Defendant State ofFlorida.

I HEREBY CERTIFY that on November 22,2010, I electronically filed the foregoing document

with the Clerk ofthe Court using CMlECF. I also certify that the foregoing document was served this

day on all counsel ofrecord and pro se parties either via transmission ofNotices ofElectronic Filing

generated by CMlECF or in some other authorized matter for those counselor parties who are not

authorized to receive Notices ofElectronic Filing.

STEPHEN M. CODY, ESQ.

Florida Bar No. 334685

16610 SW 82nd Court

Palmetto Bay, FL 33157

Telephone (305) 753-2250

Facsimile (305)468-6421

s/Stephen M. Cody

Fla. Bar No. 334685


008


009


Case 1:10-cv-23968-UU Document 9 Entered on FLSD Docket 12/07/2010 Page 1 of 2

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

PLAINTIFFS' MOTION TO ABATE

Plaintiffs Mario Diaz-Balart and Corrine Brown, by and through their undersigned counsel move

this Court for entry ofa temporary abatement ofthis action and as grounds therefore would show:

1. Plaintiffs have brought this action seeking a declaratory judgment that Article III, Section

20 ofthe Florida Constitution is unconstitutional as well as injunctive reliefprohibiting the enforcement

ofArticle III, Section 20 ofthe Florida Constitution.

2. Plaintiffs served their Amended Complaint upon Attorney General Bill McCollum on

November 16,2010. The response to the Amended Complaint is due on or about December 9,2010.

3. Attorney General McCollum's term expires on January 4,2011 and his successor, Pam

Bondi will be sworn in on that day.

4. Governor Charlie Crist's term will also expire on January 4 th and his successor, Rick

Scott, will assume that office on that day as well.

5. The undersigned was contacted by Douglas B. MacInnes, Assistant Deputy Attorney

General for Civil Litigation, who requested that the case be put on a briefabatement so that the new


Case 1:10-cv-23968-UU Document 9 Entered on FLSD Docket 12/07/2010 Page 2 of2

administrations ofboth the Governor and the Attorney General can be put into place before the State of

Florida is required to file its response to the Amended Complaint in this action.

6. Assistant Deputy Attorney General MacInnes requested that the Plaintiffs seek an

abatement ofthis action until January 11,2011 so that the new administrations can decide how to

proceed in the case.

7. Plaintiffs have consented to this short abatement period.

8. The abatement sought will not interfere with the Court's deadline to submit the

scheduling order in this matter or the attendance ofthe parties at the initial pre-trial conference.

WHEREFORE, Plaintiffs respectfully request that the Court enter an Order abating this matter

briefly and directing that the State ofFlorida respond to the Amended Complaint on or before January

11,2011.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

s/Stephen M. Cody

CERTIFICATE OF SERVICE

Fla. Bar No. 334685

I hereby certify that a true and correct copy was furnished to Douglas B. MacInnes, Assistant

Deputy Attorney General for Civil Litigation, Office ofthe Attorney General, PL-O 1, The Capitol,

Tallahassee, Florida 32399-1050 via email toDouglas.Maclnnes@myfloridalegal.com.

2

s/Stephen M. Cody


010


Case 1:10-cv-23968-U U Document 10 Entered on FLSD Docket 12/10/2010 Page 1 of 2

MARIO DIAZ-BALART and

CORRINE BROWN,

vs.

Plaintiff,

STATE OF FLORIDA,

Defendant.

-------------------'/

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

ORDER ON PLAINTIFFS' MOTION TO ABATE

Case No.: 1O-23968-UNGARO

THIS CAUSE is before the Court upon Plaintiffs' Motion to Abate this action, filed

December 7,2010 (D.E. 9).

THE COURT has considered the Motion, the pertinent portions ofthe record, and is

otherwise fully advised in the premises. Plaintiffs request that this Court abate this action and direct

Defendant to respond to the Amended Complaint on or before January 11,2011. It is hereby

ORDERED AND ADmDGED that the Motion (D.E. 9) is GRANTED IN PART.

Defendant SHALL respond to the Amended Complaint on or before January 11,2011. In all other

espects, the motion is DENIED.

DONE AND ORDERED in Chambers, in Miami, Florida this 9th day ofDecember, 2010.

cc: counsel ofrecord

URSULA UNGARO

UNITED STATES DISTRICT mDGE


Case 1: 10-cv-23968-UU Document 10 Entered on FLSD Docket 12/10/2010 Page 2 of 2


011


Case 1:10-cv-23968-UU Document 11 Entered on FLSD Docket 12/16/2010 Page 2 of 3

subject ofthis action, and are so situated that disposing ofthe action may as a practical matter impair

or impede their ability to protect its interest. Movants further allege that their interests are not

adequately represented by existing parties. The grounds for the motion for permissive intervention

pursuant to Rule 24(b)(I)(B), are that movants have a defense that shares with the main action a

common question oflaw or fact.

This motion is accompanied by movants' answer setting forth the claims and defenses for

which intervention is sought.

granted.

WHEREFORE, movants request that their Motion for Leave to Intervene as Defendants be

Respectfully submitted,

/s Randall C. Marshall

RANDALLC.MARSHALL

American Civil Liberties Union

Foundation ofFlorida, Inc.

4500 Biscayne Blvd Suite 340

Miami, FL 33137

Tel: (786) 363-2700

Fax: (786) 363-1108

Rmarshall@aclufl.org

FL Bar Number 181765

LAUGHLIN McDONALD l

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW, Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331

Lmcdonald@aclu.org

Attorneys for Movants

Motion for leave to appearpro hac vice pending.

2


Case 1: 10-cv-23968-U U Document 11 Entered on FLSD Docket 12/16/2010 Page 3 of 3

CERTIFICATE OF CONFERENCE

I hereby certify that pursuant to S.D. Fla. L.R. 7.1(a)(3), I conferred with counsel for

plaintiffs. Plaintiffs oppose this motion. Although no entry ofappearance has been filed, I twice

attemptedto conferwiththe AttorneyGeneral's office butwas unable to obtainthe State ofFlorida's

position with regard to this motion.

sf Randall C. Marshall

CERTIFICATE OF SERVICE

I herebycertifythat onDecember 16,2010, I electronicallyfiled the foregoing document with

the Clerkofthe Court using CMlECF. I also certifythat the foregoing document is being served this

day on all counsel ofrecord identified on the attached Service List via transmission ofNotices of

Electronic Filing generated by CMlECF or bye-mail as indicated below.

viaCMlECF:

via e-mail:

Stephen M. Cody, Esq.

16610 SW 82 Court

Palmetto Bay, FL 33157

sf Randall C. Marshall

SERVICE LIST

Case No. IO-CV-23968-UNGARO

Douglas B. MacInnes, Assistant Deputy Attorney General

Office ofthe Attorney General

PL-O 1, The Capitol

Tallahassee, FL 32399-1050

Douglas.MacInnes@myfloridalegal.com

3


Case 1:10-cv-23968-UU Document 11-1 Entered on FLSD Docket 12/16/2010 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MARIO DIAZ-BALART and CORRINE )

BROWN, )

)

Plaintiffs, )

)

vs. ) Case No. 1O-CV-23968-UNGARO

)

STATE OF FLORIDA, )

)

Defendant, )

)

and )

)

THE AMERICAN CIVIL LIBERTIES )

UNION OF FLORIDA; HOWARD SIMON,)

BENETTAM. STANDLY, SUSAN )

WATSON, and JOYCE HAMILTON )

HENRY, )

)

Defendant-Intervenors. )

--------------)

PROPOSED ANSWER OF ACLU DEFENDANT-INTERVENORS TO

AMENDED COMPLAINT

1. Intervenors admit the allegations in paragraph 1 of the amended complaint, but deny

Plaintiffs are entitled to any relief on their claims.

2. Intervenors admit the allegations in paragraph 2 of the amended complaint, but deny

Plaintiffs are entitled to any reliefon their claims.

3. Intervenors admit that Florida is one ofthe several states ofthe United States, but deny

that Florida is a proper party to this lawsuit.

4. Intervenors admit the allegations in paragraph 4 of the amended complaint, but are

without sufficient knowledge to admit or deny whether Plaintiff Diaz-Balart intends to run for

Congress in 2012.


Case 1: 10-cv-23968-UU Document 11-1 Entered on FLSD Docket 12/16/2010 Page 2 of 5

5. Intervenors admit the allegations in paragraph 5 of the amended complaint, but are

without sufficient knowledge to admit or deny whether PlaintiffBrown intends to run for Congress

in 2012.

6. Intervenors admit the allegations in paragraph 6 ofthe amended complaint.

7. Intervenors admit the allegations in paragraph 7 ofthe amended complaint.

8. Intervenors admit the allegations in paragraph 8 ofthe amended complaint.

9. Intervenors admit the allegations in paragraph 9 ofthe amended complaint.

10. Intervenors admit the allegations ofparagraph 10 ofthe amended complaint.

11. Intervenors admit that Section 5 of the Voting Rights Act applies to five Florida

counties, butthe remaining allegations inparagraph 11 contain statements oflawand/or conclusions

oflaw to which no response is required.

12. Intervenors admit the allegations in paragraph 12 that Section 5 ofthe Voting Rights Act

prohibits retrogression ofminority voting strength, but the remaining allegations in paragraph 12

contain statements oflaw and/or conclusions oflaw to which no response is required.

13. Intervenors deny the allegations in paragraph 13 ofthe amended complaint.

14. Intervenors deny the allegations in paragraph 14 ofthe amended complaint

15. Intervenors deny the allegations in paragraph 15 ofthe amended complaint.

16. Intervenors deny the allegations in paragraph 16 ofthe amended complaint.

17. Intervenors lack sufficient knowledge to admit or deny the allegations in paragraph 17

ofthe amended complaint.

18. Intervenors repeat and reallege their responses to the allegations in paragraphs 1through

17 set forth above.

2


Case 1: 10-cv-23968-UU Document 11-1 Entered on FLSD Docket 12/16/2010 Page 3 of 5

19. The allegations in paragraph 19 ofthe amended complaint are statements oflaw and/or

conclusions oflaw to which no response is required.

20. The allegations in paragraph 20 ofthe amended complaint are statements oflaw and/or

conclusions oflaw to which no response is required.

21. The allegations in paragraph 21 ofthe amended complaint are statements oflaw and/or

conclusions oflaw to which no response is required.

22. The allegations in paragraph 22 ofthe amended complaint are statements oflaw and/or

conclusions oflaw to which no response is required.

23. The allegations in paragraph 23 ofthe amended complaint are statements oflaw and/or

conclusions oflaw to which no response is required.

24. The allegations in paragraph 24 ofthe amended complaint are statements oflaw and/or

conclusions oflaw to which no response is required.

25. Intervenors deny the allegations in paragraph 25 ofthe amended complaint

26. Intervenors deny the allegations in paragraph 26 ofthe amended complaint.

27. Intervenors deny the allegations in paragraph 27 ofthe amended complaint.

28. Intervenors deny the allegations in paragraph 28 ofthe amended complaint.

29. Intervenors admit that a violation ofthe Constitutionmaybe challenged under 42 U.S.C.

§ 1983, but deny that Article ill, Section 20 is unconstitutional.

30. Intervenors repeat and reallege theirresponses to the allegations in paragraphs 1through

17 and 19 through 29 set forth above.

31. Intervenors deny the allegations in paragraph 31 ofthe amended complaint.

32. Intervenors deny the allegations in paragraph 32 ofthe amended complaint.

3


Case 1:10-cv-23968-UU Document 11-1 Entered on FLSD Docket 12/16/2010 Page 4 of 5

Intervenors denyPlaintiffs are entitledto anyofthe reliefprayed for in theirPrayer for Relief.

AffIrmative Defenses

1. Absent a waiver ofsovereign immunity, the State ofFlorida is not a proper party to this

litigation and should be dismissed as the defendant.

2. Absent a proper party defendant, the amended complaint should be dismissed for failure

to state a claim upon which relief can be granted.

can be granted.

3. The amended complaint should be dismissed for failure to state a claim uponwhich relief

Respectfully submitted,

/s Randall C. Marshall

RANDALL C. MARSHALL

American Civil Liberties Union

Foundation of Florida, Inc.

4500 Biscayne Blvd Suite 340

Miami, FL 33137

Tel: (786) 363-2700

Fax: (786) 363-1108

Rmarshall@aclufl.org

FL Bar Number 181765

LAUGHLIN McDONALD l

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331

Lmcdonald@aclu.org

Attorneys for Movants

Motion for leave to appearpro hac vice pending.

4


Case 1: 10-cv-23968-UU Document 11-1 Entered on FLSD Docket 12/16/2010 Page 5 of 5

CERTIFICATE OF SERVICE

I herebycertifythatonDecember 16, 2010, I electronicallyfiled the foregoing documentwith

the Clerkofthe Courtusing CMlECF. I also certifythat the foregoing document is being served this

day on all counsel ofrecord identified on the attached Service List via transmission ofNotices of

Electronic Filing generated by CMlECF or bye-mail as indicated below.

viaCMlECF:

via e-mail:

Stephen M. Cody, Esq.

16610 SW 82 Court

Palmetto Bay, FL 33157

sf Randall C. Marshall

SERVICE LIST

Case No. 1O-CV-23968-UNGARO

Douglas B. MacInnes, Assistant Deputy Attorney General

Office ofthe Attorney General

PL-O1, The Capitol

Tallahassee, FL 32399-1050

Douglas.MacInnes@myfloridalegal.com

5


Case 1:10-cv-23968-UU Document 11-2 Entered on FLSD Docket 12/16/2010 Page 2 of2

pursuant to Rules 24(b)(1)(B). Therefore, the motion to intervene is GRANTED.

AND IT IS SO ORDERED, this _ day of , 2010.

URSULA UNGARO

UNITED STATES DISTRICT JUDGE

2


012


Case 1:10-cv-23968-UU Document 12 Entered on FLSD Docket 12/16/2010 Page 2 of 10

commitment, the ACLU has been active in defending the equal right ofall persons to participate

in the electoral process. The ACLU-FL is the state affiliate ofthe ACLU, and Howard Simon is the

affiliate's Executive Director. The ACLU-FLhas approximately25,000 members, 18 volunteer-led

chapters, and 24 staffmembers located in its Miami headquarters and regional offices in Pensacola,

Jacksonville, and Tampa. The ACLU and the ACLU-FL have represented voters and candidates in

numerous election cases to protect the right to vote and the right to participate in an electionprocess

that is fair. Recent voting rights case in which the ACLU-FL has been involved include: Wexler v.

Lepore, 878 So.2d 1276 (Fla. 4 1h DCA 2004); Florida Caucus ofBlack State Legislators, Inc. v.

Crosby, 877 So.2d 861 (Fla. 1 51 DCA 2004); andFriedmanv. Snipes, 345 F.Supp.2d 1356 (S.D. Fla.

2004).

ACLU-FL and its members have also worked extensively on behalfofadoption ofArticle

III, Section 20 of the Florida Constitution. In 2008, the ACLU-FL Board of Directors voted to

support the proposed congressional redistricting amendment and to join FairDistrictsFliorida.org,

the organization that was the principal sponsor of the proposed amendment. At its March 2010

meeting, the Board of Directors created a political committee (People Over Politics) to work in

support ofpassage ofthe amendment at the November 2010 election. The ACLU-FL asserts the

interests ofits members who are registered voters inFlorida. See,.£.:&, Doe v. Stincer, 175 F.3d 879,

882 (11 Ih Cir. 1999) ("It has long been settled that an organization has standing to sue to redress

injuries suffered by its members without a showing ofinjury to the association itselfand without

a statute explicitly permitting associational standing.").

ll. The Motion to Intervene Is Timely

As an initial matter, an application for intervention under Rules 24(a) and (b) must be

"timely." The answer of the State ofFlorida will not be due until January 11, 2011. No status

conference has been held, no discovery has been undertaken, no dispositive orders have been

entered in the case, and no trial has been set or held. Granting intervention would not, therefore,

cause any delay in the trial ofthe case nor prejudice the rights ofany existing party. See Bossier

2


Case 1:10-cv-23968-UU Document 12 Entered on FLSD Docket 12/16/2010 Page 4 of 10

1995) (registered voters had "a sufficiently substantial interest to intervene" in a suit challenging

congressional redistricting); Clark v. Putnam County, 168 F.3d 458,462 (lIth Cir. 1999) ("black

voters had a right to intervene" in action challenging county redistricting, and listing recent voting

cases allowing intervention); Burton v. Sheheen, 793 F.Supp 1329, 1338 (D. S.C. 1992); Brooks

v. State Board ofElections, 838 F.Supp. 601, 604 (S.D. Ga. 1993); Bakerv. Regional High School

District No.5, 432 F.Supp. 535, 537 (D. Conn. 1977) (residents ofschool district had an interest

in method ofelecting school board that entitled them to intervene in apportionment challenge).

The Eleventh Circuit, in reversing a district court denial ofintervention to countyresidents

in a voting rights case, articulated the substantial, legally protected interests of voters in their

election system:

intervenors sought to vindicate important personal interest in maintaining the

election system that governed their exercise of political power ... As such, they

alleged a tangible actual or prospective injury.

Meek v. Metropolitan Dade County, 985 F.2d 1471, 1480 (11th Cir. 1993).

Intervention is particularly appropriate in this case because movants, unlike the State of

Florida, include actual residents and voters who were actively involved in the process that led to

the adoption ofArticle ill, Section 20. They are therefore in a special position to provide the Court

with a local appraisal ofthe facts and circumstances involved in the litigation. In County Council

ofSumterCountyv. United States, 555 F.Supp. 694, 697 (D. D.C. 1983), the court allowed African

American citizens to intervene in a Section5preclearance action inpart specificallybecause oftheir

"local perspective on the current and historical facts at issue." See also, Bossier Parish Sch. Bd. v.

Reno, 907 F. Supp 434 (D.D.C. 1995) (making extensive reference to arguments presented by

DefendantIntervenors, African-Americanvoters, in Section 5 declaratoryjudgmentaction); Busbee

v. Smith, 549 F. Supp. 494 (D.D.C. 1982) (recognizing arguments presented by Intervenors,

African-American voters, in Section 5 declaratoryjudgment action), affd, 459 U.S. 1166 (1983);

Commack Self-Service Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93 (E.D.N.Y. 1996) (noting that

intervenors would bring a different perspective to case that might assist court, and intervention

4


Case 1:10-cv-23968-UU Document 12 Entered on FLSD Docket 12/16/2010 Page 5 of 10

came early in the action); Fiandaca v. Cunningham, 827 F.2d 825,835 (1st Cir. 1987) (likelihood

that applicants would introduce additional evidence favors intervention).

Movants have an interest in the subject matter of this action sufficient to warrant

intervention. Indeed, as voters who actively supported adoption ofArticle ill, Section 20, no entity

could have a greater interest.

B. Movants' Ability to Protect Their Interests Will Be Impaired or Impeded ifIntervention

Is Denied

The outcome ofthis action may as a legal and practical matter impair or impede movants'

ability to protect their interests. Rule 24(a)(2). If Article ill, Section 20 is found to be

unconstitutional, movants would be denied the protection of the provision. The State of Florida

would then be free to redistrict without complying with the retrogression and other provisions of

Section 20, including that districts should be drawn neither to favor nor disfavor a political party

or an incumbent.

C. Movants' Interests Cannot Be Adequately Represented by the Existing Parties

Movants can satisfy Rule 24(a)(2)'s inadequate representation requirement by showing

merely that representation oftheir interests '''may be' inadequate" and "the burden ofmaking this

showing should be treated as 'minimal.'" United Guaranty Residential Insurance Co. V.

Philadelphia Sav. Fund, 819 F.2d 473, 475 (4th Cir. 1987) (quoting Trbovich v. United Mine

Workers ofAmerica, 404 U.S. 528, 538 n. 10 (1972)). See also Inre Sierra Club, 945 F.2d 776,779

(4th Cir. 1991)(same). The court in Nuesse v. Camp, 385 F.2d 694,702 (D.C. Cir. 1967), held that

Rule 24 "underscores both the burden ofthose opposing intervention to show the adequacy ofthe

existing representation and the need for a liberal application in favor ofpermitting intervention."

See also Smuck v. Hobson, 408 F.2d 175, 181 (D.C. Cir. 1969) (same).

Although the State ofFloridaand the movants for intervention "mayshare some objectives"

with respect to the constitutionalityofArticle ill, Section 20, In re Sierra Club, 945 F.2d at 780, that

does not mean that the State ofFlorida's interests and movants' interests are identical or that their

approaches to litigation would be the same. In CityofLockhart v. United States, 460 U.S. 125, 130

5


Case 1:10-cv-23968-UU Document 12 Entered on FLSD Docket 12/16/2010 Page 6 of 10

(1983), for example, the government and minorities disagreed on the proper application of the

Voting Rights Act and what constitutes adequate protection ofvoting rights. See also Blanding v.

DuBose, 454 U.S. 393,398-399 (1982) (minorityplaintiffs, but nottheUnited States, appealed and

prevailed in the Supreme Court in voting rights case); County Council of Sumter County, 555

F.Supp. at 696 (United States and minority intervenors took opposite positions regarding the

application ofSection 2 to Section 5 preclearance).

The Supreme Court has "recognized that when a party to an existing suit is obligated to

serve two distinct interests, which, although related, are not identical, another with one ofthose

interests should be entitled to intervene." United Guaranty Residential Insurance, 819 F.2d at 475

(referring to Trbovich, 404 U.S. at 538-539). In Trbovich, the Supreme Court allowed a union

member to intervene in an action brought by the Secretary ofLabor to set aside union elections for

violation of the Labor-Management Reporting and Disclosure Act of 1959, even though the

Secretary was broadly charged with protecting the public interest. The Court reasoned that the

Secretary ofLabor could not adequately represent the union member because the Secretary had a

"dutyto serve two distinct interests," 404 U.S. at 539, a duty to protect both the public interest and

the rights ofunion members.

In a similar case, the Fourth Circuit allowed an environmental group to intervene as a party

defendant in an action where the South Carolina Department ofHealth and Environmental Control

(DHEC) was defending the constitutionality ofa state regulation governing the issuance ofpermits

for hazardous waste facilities. The court reasoned that DHEC could not adequately represent the

environmental group because "in theory, [DHEC] should represent all ofthe citizens ofthe state,

including the interests of those citizens who may be ... proponents of new hazardous waste

facilities," In re Sierra Club, 945 F.2d at 780, while the environmental group "on the other hand,

appears to represent only a subset ofcitizens concerned with hazardous waste - those who would

prefer that few or no new hazardous waste facilities receive permits." rd. See also, Dimond v.

District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986) (private party seeking to protect its

6


Case 1:10-cv-23968-UU Document 12 Entered on FLSD Docket 12/16/2010 Page 7 of 10

financial interest allowed to intervene despite presence ofgovernment which represented general

public interest); Natural Res. Def. Council, Inc. v. United States Envtl. Prot. Agency, 99 F.R.D.

607, 610 n.5 (D.D.C. 1983) (pesticide manufacturers allowed to intervene because eventhough both

EPA and intervenors wanted to uphold regulations, their interests cannot always be expected to

coincide, since the court recognized that the AEPA represents the public interest not solely that of

the ... industry"); Georgia v. Ashcroft, 539 U.S. 461 (2003) (upholding grant ofprivate parties'

motion to intervene on grounds that intervenors' interests were not adequately represented by the

existing parties); Chiles v. Thornburgh, 865 F.2d 1197, 1214-15 (lIth Cir. 1989) (federal prison

detainees' interests may not be adequately represented by county); New York Public Interest

Research Group, Inc. v. Regents ofthe University ofthe State ofNew York, 516 F.2d 350,352 (2nd

Cir. 1975) (pharmacists and pharmacyassociation allowed to intervene where "there is a likelihood

that the pharmacists will make a more vigorous presentation ofthe economic side ofthe argument

than would" the state Regents); Associated General Contractors ofConnecticut, Inc. v. CityofNew

Haven, 130 F.R.D. 4, 11-12 (D. Conn. 1990) (minority contractors allowed to intervene because

"its interest in the set-aside is compelling economically and thus distinct from that ofthe City" ).

Movants' interests in this litigation are, in like fashion, sufficiently different from those of

the State ofFlorida to justify intervention. The State ofFlorida must represent the interests ofits

citizenry generally - including the interests ofthe Plaintiffs. Trbovich, 404 U.S. at 538-39; In re

Sierra Club, 945 F.2d at 780. Where a party represents such dual interests in litigation, the "test"

ofwhetherthat partywill adequatelyrepresent the interests ofpotential intervenors is "whethereach

ofthe dual interests [ofthe party] may'always dictate precisely the same approach to the conduct

of the litigation.' 404 U.S. 539." United Guaranty Residential Insurance Co., 819 F.2d at 475.

Consequently, even ifthe State ofFlorida vigorously performs its duty to represent its citizenry,

representation ofmovants' distinct interests may still be inadequate because the State ofFlorida

must balance the competing interests presented by the proposed intervenors as well as those

individuals or entities, like the Plaintiffs, who oppose it. While the interests ofthe State ofFlorida

7


Case 1: 10-cv-23968-UU Document 12 Entered on FLSD Docket 12/16/2010 Page 8 of 10

and movants may converge on issues such as the constitutionality ofSection 20, they may diverge

when it comes to arguments to be made and appealing any adverse decisions.

Movants meet the standards for intervention as ofright, and their motion should be granted.

IV. Permissive Intervention Is Also Appropriate

Even if this Court should determine that movants do not satisfy the requirements for

intervention of right, it should grant permissive intervention under Rule 24(b)(1 )(B).

Rule 24(b)(1)(B) permits intervention when an applicant "has a claim or defense that shares with

the main action a common question oflaw or fact." As discussed above, movants seek to defend

the constitutionality ofArticle III, Section 20, which claim and defense shares common factual and

legal questions with the main action.

In Arizona v. California, 460 U.S. 605 (1983), Indian tribes were permitted to intervene in

a waterrights action between states, despite interventionbythe United States on behalfofthe tribes.

The Court reasoned that "the Indian's participation in litigation critical to their welfare should not

be discouraged." Id. at 615. The pending litigation is no less critical to movant's welfare, and

accordingly intervention should be granted.

Rule 24(b)(3) also provides that: "In exercising its discretion, the court must consider

whether the intervention will unduly delay or prejudice the adjudication of the original parties'

rights." As discussed above, intervention is timely and will not delay orprejudice the adjudication

of the rights of the original parties. Prejudice should not, of course, be confused with the

convenience of the parties. See McDonald v. E.J. Lavino Co., 430 F.2d at 1073 ("mere

inconvenience is not in itselfa sufficient reason to reject as untimely a motion to intervene as of

right"); Clark v. Putnam County, 168 F.3d 458,462 (11th Cir. 1999) (same).

8


Case 1:10-cv-23968-UU Document 12 Entered on FLSD Docket 12/16/2010 Page 9 of 10

Conclusion

For the above and foregoing reasons, the Court should pennit the movants to intervene in

this action as party defendants.

Respectfully submitted,

/s Randall C. Marshall

RANDALL C. MARSHALL

American Civil Liberties Union

Foundation ofFlorida, Inc.

4500 Biscayne Blvd Suite 340

Miami, FL 33137

Tel: (786) 363-2700

Fax: (786) 363-1108

Rmarshall@aclufl.org

FLBarNumber 181765

LAUGHLIN McDONALD l

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW, Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331

Lmcdona1d@aclu.org

Attorneys for Movants

1 Motion for leave to appearpro hac vice pending.

9


Case 1: 10-cv-23968-U U Document 12 Entered on FLSD Docket 12/16/2010 Page 10 of 10

CERTIFICATE OF SERVICE

I hereby certify that on December 16, 2010, I electronically filed the foregoing document

with the Clerk of the Court using CMlECF. I also certify that the foregoing document is being

served this day on all counsel ofrecord identified on the attached Service List via transmission of

Notices ofElectronic Filing generated by CMlECF or bye-mail as indicated below.

viaCMlECF:

via e-mail:

Stephen M. Cody, Esq.

16610 SW 82 Court

Palmetto Bay, FL 33157

sf Randall C. Marshall

SERVICE LIST

Case No. 1O-CV-23968-UNGARO

Douglas B. MacInnes, Assistant Deputy Attorney General

Office ofthe Attorney General

PL-O 1, The Capitol

Tallahassee, FL 32399-1050

Douglas.MacInnes@myfloridalegal.com

10


013


Case 1: 10-cv-23968-UU Document 13 Entered on FLSD Docket 12/20/2010 Page 2 of 7

1. Laughlin McDonald is not admitted to practice in the Southern District ofFlorida

and is a member in good standing of the Georgia Bar, the United States District Court for the

Northern District ofGeorgia, and the Eleventh Circuit.

2. Movant, Randall C. Marshall ofthe American Civil Liberties Union Foundation

of Florida, Inc., 4500 Biscayne Blvd Suite 340, Miami, FL 33137-3227, 786-363-2700, is a

member in good standing of The Florida Bar and the United States District Court for the

Southern District of Florida, maintains an office in this State for the practice of law, and is

authorized to file through the Court's electronic filing system. Movant consents to be designated

as a member of the Bar of this Court with whom the Court and opposing counsel may readily

communicate regarding the conduct ofthe case, upon whom filings shall be served, who shall be

required to electronically file all documents and things that may be filed electronically, and who

shall be responsible for filing documents in compliance with the CMlECF Administrative

Procedures.

3. In accordance with the local rules of this Court, Laughlin McDonald has made

payment of this Court's $75 admission fee. A certification in accordance with Rule 4(b) is

attached hereto.

4. Laughlin McDonald, by and through designated counsel and pursuant to Section

2B CMlECF Administrative Procedures, hereby requests the Court to provide Notice of

Electronic Filings to Laughlin McDonald at email address: Lmcdonald@aclu.org.

WHEREFORE, Randall C. Marshall moves this Court to enter an Order permitting

Laughlin McDonald, to appear before this Court on behalf ofthe ACLU ofFlorida Intervenors,


Case 1: 10-cv-23968-UU Document 13 Entered on FLSD Docket 12/20/2010 Page 3 of 7

for all purposes relating to the proceedings in the above-styled matter and directing the Clerk to

provide notice ofelectronic filings to Laughlin McDonald.

Date: December 16,2010

RANDALLC.MARSHALL

American Civil Liberties Union

Foundation ofFlorida, Inc.

4500 Biscayne Blvd Suite 340

Miami, FL 33137

Tel: (786) 363-2700

Fax: (786) 363-1108

Rmarshall@aclufl.org

FL Bar Number 181765

LAUGHLIN McDONALD

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331

Lmcdonald@aclu.org

Attorneys for ACLU ofFlorida Intervenors


Case 1:10-cv-23968-UU Document 13 Entered on FLSD Docket 12/20/2010 Page 4 of 7

UNITED STATES DISTRICT COURT FOR THE

SOUTIIERN DISTRICT OF FLORIDA

MARIO DIAZ-BALART and CORRINE )

BROWN, )

)

Plaintiffs, )

)

vs. ) Case No.1O-CV-23968-UNGARO

)

STATE OF FLORIDA, )

)

Defendant. )

)

and, )

)

THE AMERICAN CIVIL LIBERTIES )

UNION OF FLORIDA; HOWARD SIMON,)

BENETTAM. STANDLY, SUSAN )

WATSON, and JOYCE H.HENRY, )

)

Defendant-Intervenors. )

)

CERTIFICATION OF LAUGHLIN McDONALD

Laughlin McDonald, Esquire, pursuant to Rule 4(b) ofthe Special Rules Governing the

Admission and Practice ofAttorneys, hereby certifies that (1) I have studied the Local Rules of

the United States District Court for the Southern District ofFlorida; and (2) I am a member in

good standing ofthe Georgia Bar, the United States District Court for the Northern District of

Georgia, and the Eleventh Circuit.

LAUGHLIN McDONALD

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331


Case 1: 10-cv-23968-UU Document 13 Entered on FLSD Docket 12/20/2010 Page 5 of 7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 16,2010, I filed the foregoing document with

the Clerk of the Court and sent a copy by U.S. mail, postage pre-paid, and bye-mail to the

following counsel:

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

stcody@stephencody.com

Douglas B. MacInnes, Assistant Deputy Attorney General

Office ofthe Attorney General

PL-Ol, The Capitol,

Tallahassee, FL 32399-1050

Douglas.MacInnes@myfloridalegal.com

RANDALL C. MARSHALL

American Civil Liberties Union

Foundation ofFlorida, Inc.

4500 Biscayne Blvd Suite 340

Miami, FL 33137

Tel: (786) 363-2700

Fax: (786)363-1108

Rmarshall@aclufl.org

FL BarNumber 181765


Case 1: 10-cv-23968-UU Document 13 Entered on FLSD Docket 12/20/2010 Page 6 of 7

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MARIO DIAZ-BALART and CORRINE )

BROVVN, )

)

Plaintiffs, )

)

vs. ) Case No. 1O-CV-23968-UNGARO

)

STATE OF FLORIDA, )

)

Defendant. )

)

and, )

)

THE AMERICAN CIVIL LIBERTIES )

UNION OF FLORIDA; HOWARD SIMON,)

BENETTAM. STANDLY, SUSAN )

WATSON, and JOYCE HAMILTON )

HENRY, )

)

Defendant-Intervenors. )

)

ORDER GRANTING MOTION TO APPEAR

PRO HAC VICE, CONSENT TO DESIGNATION AND REQUEST TO

ELECTRONICALLY RECEIVE NOTICES OF ELECTRONIC FILING

THIS CAUSE having come before the Court on the Motion to Appear Pro Hac Vice for

Laughlin McDonald, Consent to Designation, and Request to Electronically Receive Notices of

Electronic Filing (the "Motion"), pursuant to the Special Rules Governing the Admission and

Practice of Attorneys in the United States District Court for the Southern District ofFlorida and

Section 2B ofthe CM/ECF Administrative Procedures. This Court having considered the motion

and all other relevant factors, it is hereby

ORDERED AND ADJUDGED that:


Case 1: 10-cv-23968-UU Document 13 Entered on FLSD Docket 12/20/2010 Page 7 of 7

The Motion is GRANTED. Laughlin McDonald may appear and participate in this action

on behalfofthe ACLU ofFlorida Intervenors. The Clerk shall provide electronic notification of

all electronic filings to Laughlin McDonald at Lmcdonald@aclu.org.

2010.

DONE AND ORDERED in Chambers at Miami, Florida, this _ day ofDecember,

cc: all counsel ofrecord

URSULA UNGARO

UNITED STATES DISTRICT JUDGE


014


Case 1:10-cv-23968-UU Document 14 Entered on FLSD Docket 12/27/2010 Page 1 of2

MARIO DIAZ-BALART and

CORRINE BROWN,

v.

Plaintiffs,

STATE OF FLORIDA, et a!.,

Defendants.

-------------_---.:/

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 1O-23968-CIV-UNGARO

ORDER DENYING MOTION TO APPEAR PRO HAC VICE

THIS CAUSE is before the Court upon the Motion to Appear Pro Hac Vice. (D.E. 13.)

THE COURT has considered the Motion and the pertinent portions ofthe record and is

otherwise fully advised in the premises. In the Motion, the putative Intervenors represent that

Laughlin McDonald is a member in good standing ofthe bars ofthe state ofGeorgia, the United

States District Court for the Northern District ofGeorgia, and the United States Court ofAppeals

for the Eleventh Circuit. (D.E. 13.) However, neither the Georgia Bar nor the Northern District

ofGeorgia has a record ofthis attorney as a member. Accordingly, it is

ORDERED AND ADJUDGED that said Motion (D.E. 13) is DENIED WITHOUT

PREJUDICE. The putative Intervenors may re-file a motion for Laughlin McDonald to appear

pro hac vice in this matter; however, such motion must be accompanied by a certification that

Mr. McDonald is a member in good standing ofthe bar ofany United States Court or ofthe

highest Court ofany State ofthe United States, as required by Local Rule 4 ofthe Special Rules

Governing the Admission and Practice ofAttorneys.


015


Case 1:10-cv-23968-UU Document 15 Entered on FLSD Docket 12/27/2010 Page 1 of 3

MARIO DIAZ-BALART and

CORRINE BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

-------------_/

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MOTION FOR RECONSIDERATION

Case No. 10-CV-23968-UNGARO

Counsel for the putative Intervenors respectfully request the Court's reconsideration ofits

Order Denying Motion to Appear Pro Hac Vice (D.E. 14). As grounds for this motion, the

undersigned states as follows:

1. Attorney McDonald's full given name is Moffatt Laughlin McDonald.

Undersigned counsel has always known him by "Laughlin" and therefore failed to state his full

name in the original motion (D.E. 13). Counsel apologizes to the Court for this oversight.

2. As shown by the attached declaration, Attorney McDonald goes by "Laughlin

McDonald" but is registered as M. Laughlin McDonald with the Georgia Bar and as Moffatt

Laughlin McDonald with the Northern District ofGeorgia.

3. Attorney McDonald's membership in the State Bar ofGeorgia is reflected on the

Bar's website as:

Mr. M. Laughlin McDonald

Company:

Address:

ACLU Foundation Inc.

230 Peachtree Street, N.W., Suite 1440


Case 1:10-cv-23968-UU Document 15 Entered on FLSD Docket 12/27/2010 Page 2 of 3

Atlanta, GA 30303-1513

Work Phone: (404) 523-2721

Fax: (404) 653-0331

Email: lmcdonald@aclu.org

Admit Date: 11/7/1975

Law School: University ofVirginia

Status: Active Member in Good Standing

Public Disciplinary History: None on Record

https:llwww.members.gabar.org/Custom/DirectorylDefault.aspx?iSession=a2e1edfd7de64cf79a1

3fdd4866f19ge (search for Last Name - McDonald, Company - ACLU).

4. Similarly, Attorney McDonald's membership in the Northern District of Georgia

is reflected at its website (http://www.gand.uscourts.gov/output/m.php) as:

Name Date Status Firm Name

Admitted

McDonald, Moffatt Laughlin 01/12/1976 Active American Civil Liberties Union Foundation

WHEREFORE, Randall C. Marshall respectfully moves this Court to reconsider its Order

(D.E. 14) and grant the Motion to Appear Pro Hac Vice, Consent to Designation, and Request to

Electronically Receive Notices ofElectronic Filing (D.E. 13).

Date: December 27,2010 Respectfully submitted,

Is Randall C. Marshall

RANDALL C. MARSHALL

American Civil Liberties Union

Foundation ofFlorida, Inc.

4500 Biscayne Blvd Suite 340

Miami, FL 33137

Tel: (786) 363-2700

Fax: (786) 363-1108

Rmarshall@aclufl.org

FL Bar Number 181765

LAUGHLIN McDONALD

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

2


Case 1:10-cv-23968-UU Document 15 Entered on FLSD Docket 12/27/2010 Page 3 of3

Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331

Lmcdonald@aclu.org

Attorneys for ACLU ofFlorida Intervenors

CERTIFICATE OF CONFERENCE

I hereby certifY that pursuant to S.D. Fla. L.R. 7.1(a)(3), I conferred with counsel for

plaintiffs. Plaintiffs do not oppose this motion (although they continue to oppose the

intervention).

sl Randall C. Marshall

CERTIFICATE OF SERVICE

I hereby certifY that on December 27,2010, I electronically filed the foregoing document

with the Clerk of the Court using CM/ECF. I also certifY that the foregoing document is being

served this day on all counsel of record identified below via transmission of Notices of

Electronic Filing generated by CM/ECF:

Stephen M. Cody, Esq.

16610 SW 82 Court

Palmetto Bay, FL 33157

sl Randall C. Marshall

3


Case 1:10-cv-23968-UU Document 15-1 Entered on FLSD Docket 12/27/2010 Page 1 of 1

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

-------------)

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

) Case No. 1O-CV-23968-UNGARO

)

)

)

)

)

DECLARATION OF M. LAUGHLIN McDONALD

I submit this Declaration in support ofDefendant-Intervenors Motion for Reconsideration.

1. My birth name is Moffatt Laughlin McDonald. However, I was known and called

throughout my childhood and most ofmy adult life as Laughlin McDonald.

2. I was admitted to the State Bar of Georgia in 1975 under the name of M. Laughlin

McDonald. My membership number is 489550.

3. I was admitted to the u.s. District Court for the Northen District ofGeorgia on January

12, 1976, under the name ofMoffatt Laughlin McDonald.

I declare under penalty of perjury that the foregoing is true and correct. Executed on

December 27,2010.

SI M. Laughlin McDonald

M. LAUGHLIN McDONALD

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331

Lmcdonald@aclu.org


016


Case 1:10-cv-23968-UU Document 16 Entered on FLSD Docket 12/28/2010 Page 1 of2

MARIO DIAZ-BALART and

CORRINE BROWN,

v.

Plaintiffs,

STATE OF FLORIDA, et aI.,

Defendants.

-------------------'/

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 10-23968-CIV-UNGARO

ORDER GRANTING MOTION FOR RECONSIDERATION

THIS CAUSE is before the Court upon the Motion for Reconsideration filed December

27,2010. (D.E. 13.)

THE COURT has considered the Motion and the pertinent portions ofthe record and is

otherwise fully advised in the premises. In the Motion, the putative Intervenors ask that the

Court reconsider its December 27,2010 Order denying without prejudice a motion to appear pro

hac vice filed on behalfofMr. Laughlin McDonald. As requested by the Court in that Order, the

putative Intervenors have provided the Court with a certification that Mr. M. Laughlin McDonald

is a member in good standing ofthe bars ofthe state ofGeorgia and the United States District

Court for the Northern District ofGeorgia. Accordingly, it is

ORDERED AND ADJUDGED that Motion for Reconsideration (D.E. 13) is GRANTED

M. Laughlin McDonald may appear and participate in this action on behalfofthe ACLU of

Florida Intervenors. The Clerk shall provide electronic notification ofall electronic filings to M.

Laughlin McDonald, at email address: Lmcdonald@aclu.org.


Case 1:10-cv-23968-UU Document 16 Entered on FLSD Docket 12/28/2010 Page 2 of 2

2010.

DONE AND ORDERED in Chambers at Miami, Florida, this _28th_ day ofDecember,

copies provided:

counsel ofrecord

2

URSt::::f::r

UNITED STATES DISTRICT JUDGE


Remote User

TallahasseeRunners

I e:>03/09/11 01 :36 PM


017


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 1 of 10

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE

Plaintiffs Mario Diaz-Balart and Corrine Brown, by and through their undersigned counsel

respond in opposition to the motion to intervene filed by The American Civil Liberties Union Of

Florida, Howard Simon, Benetta M. Standly, Susan Watson, and Joyce Hamilton Henry.

Background

Plaintiffs have brought this action seeking a declaratory judgment that Article III, Section 20 of

the Florida Constitution is unconstitutional as well as injunctive reliefprohibiting the enforcement of

Article III, Section 20 ofthe Florida Constitution. The American Civil Liberties Union OfFlorida

("ACLU-FL"), Howard Simon, Benetta M. Standly, Susan Watson, and Joyce Hamilton Henry have

moved to intervene in this action pursuant to either Rule 24(a)(2) or Rules 24(b)(I)(B). The motion to

intervene alleges that the individual intervenors are Florida registered voters and are members and

officers ofthe ACLU-FL. Apparently, the Intervenors do not trust the Defendant in the case, the State

ofFlorida, to defend the action to their liking. I

I The Court has granted the State ofFlorida an extension oftime to respond to the Amended Complaint

through January 11,2011. The terms ofthe present Governor and Attorney General, Charlie Crist and

Bill McCollum, respectively, expire on January 4 th and the State requested the extension so that the new


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 2 of 10

Argument

I. The Motion to Intervene Under Rule 24(a)(2) Should Be Denied

This action seeks a declaration that the newly enacted amendment found in Article III, Section

20 ofthe Florida Constitution impermissibly conflicts with Article I, Section 4 ofthe United States

Constitution. The State ofFlorida is named as the party defendant. The Supreme Court in Diamond v.

Charles, 476 U.S. 54, 62 (1986) held that "a State has standing to defend the constitutionality ofits

statute." The Intervenors move on the basis that they have an "interest" in the instant litigation, which is

sufficient to grant them standing as party defendants. However, the courts have recognized a great

difference between a proposed intervenor being "interested in" a case and having "an interest" in the

matter. The former may support intervention, while the latter will not.

Rule 24 ofthe Federal Rules ofCivil Procedure contemplates two distinct species of

intervention: intervention ofright, under Rule 24(a), and permissive intervention under Rule 24(b). The

Intervenors here seek to enter this case under either avenue. The intervention should be denied.

Rule 24(a)(2) provides:

On timely motion, the court must permit anyone to intervene who: &

(2) claims an interest relating to the property or transaction that is the

subject ofthe action, and is so situated that disposing ofthe action may as

a practical matter impair or impede the movant's ability to protect its

interest, unless existing parties adequately represent that interest.

Rule 24(a)(2), Fed.R.Civ.P. (emphasis supplied). The Eleventh Circuit has adopted the well-recognized

four-step analysis ofintervention under Rule 24(a)(2):

Federal Rule ofCivil Procedure 24(a) & "set bounds that must be

observed. The original parties have an interest in the prompt disposition of

their controversy and the public also has an interest in efficient disposition

ofcourt business." 7C Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 1904, at 270 (3d ed. 2007). To

administrations ofRick Scott and Pam Bondi could make the decision ofhow to respond to this lawsuit

on behalfofthe State ofFlorida.

2


Case 1: 10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 3 of 10

intervene ofright under Rule 24(a)(2), a party must establish that "(1) his

application to intervene is timely; (2) he has an interest relating to the

property or transaction which is the subject ofthe action; (3) he is so

situated that disposition ofthe action, as a practical matter, may impede or

impair his ability to protect that interest; and (4) his interest is represented

inadequately by the existing parties to the suit." Chiles v. Thornburgh, 865

F.2d 1197, 1213 (l1th Cir. 1989) (citing Athens Lumber Co. v. FEC, 690

F.2d 1364, 1366 (l1th Cir. 1982)).

Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302-03 (11th Cir. 2008); accord Stone v. First Union Corp.,

371 F.3d 1305, 1308-09 (11th Cir. 2004). Because the Intervenors must meet all four parts ofthis test,

failure to satisfy anyone ofthe criteria justifies denial ofits motion.

Ofthe four criteria set out in Tyson Foods, the Intervenors can only satisfy the first. Plaintiffs

concede that the motion to intervene is timely. However, the Plaintiffs dispute the Intervenors' claims

that they satisfy the remaining three.

The Intervenor's cannot demonstrate a sufficient interest relating "to the property or transaction

which is the subject ofthe action" in order to satisfy the second Tyson Foods criteria. Unlike a case

where intervention is sought pursuant to Rule 24(a)(l), where party has a right to intervene set forth in

federal law, a party seeking to intervene under Rule 24(a)(2) must establish a right ofstanding ofhis or

her own.

The Intervenors' motion should be denied because they lack a "significant protectable interest"

that may be practically impaired or impeded by the disposition ofthis case. Donaldson v. United States,

400 U.S. 517, 531 (l971). "[A]n undifferentiated, generalized interest in the outcome ofan ongoing

action" is insufficient. S. Cal. Edison Co. v. Lynch, 307 F.3d 794,803 (9th Cir. 2002) (internal quotation

marks omitted). Rather, "at some fundamental level the proposed intervenor must have a stake in the

litigation." Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941,946 (7th Cir. 2000) (internal quotation

marks and brackets omitted).

3


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 4 of 10

ACLU-FL claims that it has an interest in this litigation because it has appeared as a party in

other cases that have touched upon the right to vote? The four named individuals allege that they

supported the passage ofthe amendment to Florida's constitution, giving them a protectable interest in

seeing that the provision stays in the State's charter. In neither case does the interest rise to the level

required. See, Allen v. Wright, 468 U.S. 737, 754 (1984) ("[A]n asserted right to have the Government

act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court").

Taken another way, the Intervenors here could not allege a federal cause ofaction or claim a federal

right was being infringed ifthe State ofFlorida did not enforce the new amendment. Their only remedy

would lie in state court in Florida.

A party has standing within the meaning ofArticle III when it establishes three elements: (1)

injury, (2) causation, and (3) redressability. Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61. The

injury must be an injury in fact, Le., the invasion ofa legally protected interest that is concrete and

particularized, not conjectural or hypothetical. Id. at 560. "Moreover, there must be some causal

connection between the asserted injury and the challenged action, and the injury must be ofthe type

likely to be redressed by a favorable decision." Gutherman v. 7-Eleven, Inc., 278 F.Supp.2d 1374, 1378

(S.D. Fla. 2003) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)). These three

requirements have been described as "immutable," and as the "irreducible constitutional minimum" of

standing under the "case or controversy" clause, Bennett v. Spear, 520 U.S. 154, 162 (1997), and

Defenders ofWildlife, 504 U.S. at 560-61.

2 ACLU-FL cites to three specific cases. In Wexler v. Lapore, 878 So.2d 1276 (Fla. 4 th DCA 2004),

cited by Intervenors, ACLU-FL appeared as an amicus. From the docket at the First District Court of

Appeals, ACLU-FL appears to have appeared as counsel for the appellant in Florida Caucus ofBlack

State Legislators, Inc. v. Crosby, 877 So.2d 861 (Fla. 1 st DCA 2004) and was also counsel, but not a

party in Friedman v. Snipes, 345 F.Supp.2d 1356 (S.D. Fla. 2004). None ofthese cases stands as

precedent for the proposition that a supporter ofa successful initiative has standing to intervene as a

defendant in a case challenging the constitutionality ofthe initiative.

4


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 5 of 10

It "is not enough that an organization alleges that a particular party's conduct is against the

policies or goals ofthat organization. It is precisely this type ofbroad organizational interest which the

Supreme Court rejected in Sierra Club v. Morton, 405 U.S. 727 (1972), since it is too abstract to

represent a meaningful basis for standing." Williams v. Adams, 625 F.Supp. 256, 260 (N.D. Ill. 1985).

Under Sierra Club, ACLU-FL's interest in the amendment at issue is too abstract. The only inference to

drawn from the facts plead by the Intervenors is that ACLU-FL has no other stated purpose than to act

as a vehicle for litigation. However, the propensity ofan organization to file lawsuits, standing alone,

does not anoint it with the status ofone who has been injured in fact. In Fair Housing Council of

Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998), the Third Circuit held

"that the pursuit oflitigation alone cannot constitute an injury sufficient to establish standing under

Article III." Id. at 80. To find otherwise, any litigant could create injury in fact by bringing a case, and

Article III would present no real limitation. Spann v. Colonial Village, Inc., 899 F.2d 24,27 (D.C.Cir.

1990). What ACLU-FL seeks to assert in this case is an "abstract social interest" not cognizable as a

protectable interest under Article III. See, Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

The tenor ofIntervenors' primary argument - that, as initiative supporters, they have a quasi­

legislative interest in defending the measure they successfully advocated - must be rejected because

they are not elected state officials or authorized by state law to represent the State's interests. In Karcher

v. May, 484 U.S. 72, 82 (1987), the Supreme Court noted that applications ofthe Speaker ofthe General

Assembly and the President ofthe Senate to intervene as parties-respondent on behalfofthe legislature

in defense ofa legislative enactment was proper where New Jersey law empowered the state's

legislature to defend the constitutionality ofstate enactments. However, the Supreme Court has never

identified initiative proponents or supporters as Article III qualified defendants. In The Don't Bankrupt

Washington Committee v. Continental Illinois National Bank & Trust Co., 460 U.S. 1077 (1983)

5


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 6 of 10

(mem.), the Supreme Court held that an initiative proponent lacked standing to bring an appeal. The

Don't Bankrupt Washington Committee was the proponent ofa Washington state initiative. Continental

Ill. Nat 'I Bank & Trust Co. v. Washington, 696 F.2d 692,694 (9th Cir. 1983). On a challenge to the

initiative by the federal government, in which the Committee was permitted to intervene, the Ninth

Circuit invalidated the initiative. Id. at 694, 702. The Committee appealed to the Supreme Court, but the

Court dismissed the appeal because the Committee lacked standing, notwithstanding the fact that it had

intervened in the case below. 3

Here, the Amended Complaint alleges that the new provisions found in Article III, Section 20 of

the Florida Constitution conflict with Article I, Section 4 and the Supremacy Clause ofthe United States

Constitution. At its most primal level, the Intervenors cannot be found to have a vital interest in

ensuring that a portion ofstate law that impinges upon duties that devolve directly from the United

States Constitution to the Florida Legislature remain in effect, in spite ofthe command ofthe

Supremacy Clause. If, as the Plaintiffs allege, the new amendment violates the federal Constitution,

then it must give way, regardless ofhow many voters approved it or how fervently these Intervenors

advocated its passage. Their enthusiasm for the new measure and their desire to see that it remain in

place when the Legislature takes up redistricting commencing in the spring of2011 does not vest them

with standing and the requisite interest to be a party defendant in this action.

Because the State has sought and was granted a briefextension oftime, the Intervenors cannot

rightfully claim that they are not adequately represented at the present time. The Eleventh Circuit has

stated that courts should "presume adequate representation when an existing party seeks the same

objectives as the would-be interveners." Clark v. Putnam County, 168 F.3d 458,461 (lIth Cir. 1999).

Although this presumption is "weak," it imposes on the proposed intervener ''the burden ofcoming

3 That dismissal was a decision on the merits that is binding on lower courts on the issues presented and

necessarily decided. Mandel v. Bradley, 432 U.S. 173, 176 (l977) (per curiam).

6


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 7 of 10

forward with some evidence to the contrary." Id. (emphasis added). Here, the Intervenors have failed to

make any factual showing.

Accordingly, the Intervenor's motion to intervene as a matter ofright must be denied.

II. The Motion to Intervene Under Rule 24(b) Should Also Be Denied

As an alternative to intervention as a matter ofright, the Intervenors request that they be granted

leave to enter the case under Rule 24(b). Rule 24(b) provides:

(b) Permissive Intervention.

(1) In General.

On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a

common question oflaw or fact.

The Eleventh Circuit in In re Ford Motor Co., 471 F.3d 1233, 1246 (lIth Cir., 2006) noted:

Ifa nonparty lacks the right to intervene, Rule 24(b) allows the court to

grant it permission to do so "when a statute ofthe United States confers a

conditional right to intervene," or "when [the] applicant's claim or defense

and the main action have a question oflaw or fact in common."

Fed.R.Civ.P. 24(b); see also Chiles [v. Thornburgh, 865 F.2d 1197 (lIth

Cir.1989)] at 1213. "[I]t is wholly discretionary with the court whether to

allow intervention under Rule 24(b) and even though there is a common

question oflaw or fact, or the requirements ofRule 24(b) are otherwise

satisfied, the court may refuse to allow intervention." Worlds v. Dep't of

Health andRehabilitative Servs., 929 F.2d 591,595 (lIth Cir.1991)

(quoting 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure, § 1913, at 376-77 (2d ed.1986)).

In the instant case, the proposed answer offered by the Intervenors shows that they offer nothing

unique to the case. The Intervenors admit some ofthe facts alleged in the Amended Complaint and

deny others. They assert three affirmative defenses. The first, sovereign immunity, is a defense

7


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 8 of 10

personal to the State ofFlorida and may not be asserted by these parties. 4 The second defense, that the

State ofFlorida is not a proper party, is also a defense that belongs to the State and cannot be raised by

these Intervenors. The third and final defense, that the Amended Complaint fails to state a cause of

action, is a generic defense that does not need the presence ofthe Intervenors to be evaluated by the

Court.

In short, the Intervenors bring nothing ofsubstance to the case. The fact that they are merely

"interested in" the outcome ofthis case does not give them standing to participate in this matter. The

Amended Complaint seeks declaratory and injunctive reliefagainst the State ofFlorida. Whether that

relief is granted or denied, the decision ofthe Court will not affect the Intervenors to a greater degree

than the millions ofvoters who cast ballots in the November 2010 election either in support or

opposition to the amendment in question. The Intervenors's desire to affect the outcome ofthis case or,

at the very least, to have their voices heard does not create a "defense that shares with the main action a

common question oflaw or fact" as contemplated by Rule 24(b).

"[B]ecause an intervenor participates on equal footing with the original parties to a suit, a

movant for leave to intervene ... must satisfy the same Article III standing requirements as original

parties." Building and Constr. Trades Dept., AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir.1994)

(citations omitted). As the Eighth Circuit held:

[A]n Article III case or controversy, once joined by intervenors who lack

standing, is - put bluntly - no longer an Article III case or controversy. An

Article III case or controversy is one where all parties have standing, and a

would-be intervenor, because he seeks to participate as a party must have

4 The Amended Complaint does not seek compensatory damages, so even the broadest reading ofthe

Eleventh Amendment would not bar this action. Further, it is ironic that ACLU-FL, which holds itself

out as a champion ofthe voter, would even hint that a state is constitutionally protected from a federal

lawsuit which raises constitutional question. Its zeal in interjecting itselfinto this case could be used as

a reason to foreclose it from bringing actions in the future challenging Florida's reapportionment under

the 2010 Census, regardless ofwhether based upon Article I or the Equal Protection Clause ofthe

Fourteenth Amendment or the Voting Rights Act.

8


Case 1:10-cv-23968-UU Document 17 Entered on FLSD Docket 12/28/2010 Page 9 of 10

standing as well. The Supreme Court has made it very clear that "[those]

who do not possess Art. III standing may not litigate as suitors in the

courts ofthe United States."

Mausolfv. Babbit, 85 F.3d 1295, 1300 (8th Cir.).

The best gloss that can be put on the Intervenors' motion is that are interested bystanders.

However, no matter how hard they press their case, they cannot demonstrate that they have a interest

which is any different from the millions ofvoters who voted for the measure or the thousands who

actively campaigned for it and urged their friends and neighbors to support it. In the end, the

Intervenors should be left where they are, on the sidelines, free to observe this case, but not free to

participate as an equal party.

Conclusion

Plaintiffs respectfully request that the Court deny the motion to intervene filed by The American

Civil Liberties Union OfFlorida, Howard Simon, Benetta M. Standly, Susan Watson, and Joyce

Hamilton Henry.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

9

s/Stephen M. Cody

Fla. Bar No. 334685


Case 1: 10-cv-23968-U U Document 17 Entered on FLSD Docket 12/28/2010 Page 10 of 10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 28,2010, I electronically filed the foregoing document

with the Clerk ofthe Court using CM/ECF. I also certify that the foregoing document was served this

day on all counsel ofrecord and pro se parties either via transmission ofNotices ofElectronic Filing

generated by CM/ECF or in some other authorized matter for those counselor parties who are not

authorized to receive Notices ofElectronic Filing. I also certify that a true and correct copy was

furnished to Douglas B. MacInnes, Assistant Deputy Attorney General for Civil Litigation, Office ofthe

Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050 via email to

Douglas.MacInnes@myfloridalegal.com.

10

s/Stephen M. Cody


018


Case 1: 10-cv-23968-UU Document 18 Entered on FLSD Docket 12/31/2010 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MARIO DIAZ-BALART and CORRINE )

BROWN, )

)

Plaintiffs, )

)

vs. ) Case No. 1O-CV-23968-UNGARO

)

STATE OF FLORIDA, )

)

Defendant, )

)

and )

)

THE AMERICAN CIVIL LIBERTIES )

UNION OF FLORIDA; HOWARD SIMON,)

BENETTAM. STANDLY, SUSAN )

WATSON, and JOYCE HAMILTON )

HENRY, )

)

Defendant-Intervenors. )

)

DEFENDANT-INTERVENORS' REPLY

TO PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE

1. Defendant-Intervenors Are not Required to Prove Standing

Plaintiffs spend most oftheir brieferroneously arguing that Defendant-Intervenors are

required to establish standing under Article III ofthe U.S. Constitution as a condition for

intervention pursuant to Rules 24(a) and (b), Fed.R.Civ.P. Plaintiffs' Response, DE 17, pp. 3-9.

According to Plaintiffs, "a party seeking to intervene under Rule 24(a)(2) must establish a right

ofstanding ofhis or her own." Id., p. 3. Plaintiffs repeat this argument with respect to permissive

intervention pursuant to Rule 24(b). Id., p. 8. Plaintiffs also erroneously claim that "Intervenors

move on the basis that they have an 'interest' in the instant litigation, which is sufficient to grant


Case 1:10-cy-23968-UU Document 18 Entered on FLSD Docket 12/31/2010 Page 30f8

have standing to bring a law suit, Defendant-Intervenors must be acknowledged as also having

standing to intervene to seek a "declaratoryjudgment clarifying the legal relations ofthe parties."

Id.

In addition, were Plaintiffs correct that Defendant-Intervenors lacked standing, then it

would follow that Plaintiffs also lacked standing. While they disagree with Defendant­

Intervenors on the constitutionality ofthe state law, Plaintiffs' interests in clarifying the legal

relations ofthe parties are similar to those ofDefendant-Intervenors.

II. The Cases Denying Intervention Relied Upon by Plaintiffs Are Inapposite

The cases Plaintiffs rely upon in support oftheir argument that intervention under Rule

24(a)(2) is unwarranted (DE 17, p. 3) are inapposite. In Southern Calif. Edison Co. v. Lynch, 307

F.3d 794, 803 (9 th Cir. 2002), the court affirmed the denial ofintervention as ofright because the

"pending litigation would not resolve" the proposed intervenors' claims. Those claims were

"based on a contingent, unsecured claim against a third-party debtor" which the court held "falls

far short ofthe 'direct, non-contingent, substantial and legally protectable' interest required for

intervention as a matter ofright." Id. (citation omitted). Permissive intervention was also denied

movants because "no common question oflaw or fact exists between their claims and the main

action." Id. As the court concluded, intervention is "not intended to allow the creation ofwhole

new lawsuits by the intervenors." Id. at 804 (citation omitted). Here, however, the pending

litigation would in fact decide Defendant-Intervenors' claims, and would not create a new lawsuit

but resolve common questions oflaw and fact.

In Sokaogon Chippewa Cmtv. v. Babbitt, 214 F.2d 941 (7th Cir. 2000), also relied upon

3


Case 1:10-cv-23968-UU Document 18 Entered on FLSD Docket 12/31/2010 Page 4 of 8

by Plaintiffs (DE 17, p. 3), the court denied intervention for a variety ofreasons, none ofwhich

are present here. Those reasons included: intervention was not sought until five years after the

original complaint was filed; any impact ofthe litigation on intervenors' interests "is pure

speculation at this point;" intervenors failed to document that the suit would have a detrimental

impact "on its interests;" intervention "serves no conceivable purpose other than to bloc a

settlement agreement that it does not like;" and intevenors were free to bring litigation

challenging the settlement. rd. at 947-49. Here, by contrast, intervention is timely, the impact of

the litigation on intervenors' rights is real and not speculative, the purpose ofintervention is to

protect voting rights, and this litigation would be dispositive. See Stone v. First Union Corp., 371

F3d 1305, 1309-10 (11 th Cir. 2004) ("the potential for a negative stare decisive effect 'may

supply that practical disadvantage which warrants intervention ofright"') (citation omitted).

Defendant-Intervenors satisfy the requirements ofRule 24(a)(2) in that they claim an

interest in the property or transaction that is the subject ofthe action, and are so situated that

disposing ofthe action may as a practical matter impair or impede their ability to protect their

interest. Under the circumstances, intervention in this case is warranted.

m. Defendant-Intervenors' Interests Are not Adequately Represented

Plaintiffs claim that "Intervenors cannot rightfully claim that they are not adequately

represented at the present time." DE 17, p. 6. The very case they rely upon to support this

argument, i.e., Clark v. Putnam County, 168 F.3d 458 (11 th Cir. 1999), directly refutes it.

In Clark v. Putnam County, the court ofappeals reversed in part and vacated and

remanded a decision ofthe district court denying intervention as ofright to black voters and the

4


Case 1: 10-cv-23968-U U Document 18 Entered on FLSD Docket 12/31/2010 Page 5 of 8

Georgia NAACP. The action in which they sought to intervene had been brought by white voters

challenging the constitutionality ofa districting plan implemented to remedy the dilution of

minority voting strength caused by at-large voting. The Putnam County Commission had

affIrmatively stated that "they represent the interests ofall Putnam County citizens." 168 F.3d at

461. The court ofappeals concluded, however, that the fact that the County Commission will

"represent everyone in itselfindicates that the commission represents interests adverse to the

proposed intervenors." Id. Similarly, the fact that the State ofFlorida may represent the interests

ofall Floridians, including the Plaintiffs, establishes that Defendant-Intervenors' interests are not

adequately represented within the meaning ofRule 24(a)(2).

Plaintiffs also claim that "the Intervenors do not trust the Defendants in the case, the State

ofFlorida, to defend the action to their liking." DE 17, p. 1. The standard for determining lack of

adequate representation for purposes ofintervention under Rule 24(a)(2) is not a lack oftrust but

whether "it is clear" that existing parties "will provide adequate representation." Chiles v.

Thornburg, 865 F.2d at 1214. As the Supreme Court has held, the "requirement ofthe Rule is

satisfIed ifthe applicant shows that representation ofhis interest 'maybe' inadequate; and the

burden ofmaking that showing should be treated as minimal." Trbovich v. United Mine

Workers, 404 U.S. 528, 538 n.10 (1972). And as Clark v. Putnam County provides, the fact that

the State ofFlorida will represent everyone indicates that the State's interests are adverse to those

ofDefendant-Intervenors.

IV. Plaintiffs Other Arguments Are Irrelevant, Without Merit, or Frivolous

Plaintiffs make other arguments, many addressing the issue ofstanding, that are

5


Case 1:10-cv-23968-UU Document 18 Entered on FLSD Docket 12/31/2010 Page 8 of 8

Fax: (786) 363-1108

Rmarshall@aclufl.org

FL Bar Number 181765

s/M. Laughlin McDonald

M. LAUGHLIN McDONALD

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, GA 30303-1227

Tel: (404) 523-2721

Fax: (404) 653-0331

Lmcdonald@aciu.org

Attorneys for Movants

CERTIFICATE OF SERVICE

I herebycertifythatonDecember31,2010, I electronicallyfiled the foregoing documentwith

the Clerkofthe Court using CMlECF. I also certifythat the foregoing document is being served this

day on all counsel of record identified below via transmission of Notices of Electronic Filing

generated by CMlECF:

Stephen M. Cody, Esq.

16610 SW 82 Court

Palmetto Bay, FL 33157

sl Randall C. Marshall

8


019


Case 1:10-cv-23968-UU Document 19 Entered on FLSD Docket 01/06/2011 Page 1 of 4

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTA M. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; DEMOCRACIA

AHORA; LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; and STEPHEN EASDALE,

Defendant-Intervenors.

lJNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. lO-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

MOTION FOR LEAVE TO INTERVENE AS DEFENDANTS

The Florida State Conference of NAACP Branches ("Florida NAACP"), Leon W.

Russell, Patricia T. Spencer, and Carolyn H. Collins (collectively the "NAACP Intervenors"),

Democracia Ahora, Edwin Enciso, and Stephen Easdale (collectively the "Democracia

Intervenors") respectfully move the Court for leave to intervene in the above-captioned case as

of right pursuant to Federal Rule of Civil Procedure 24(a)(2), or instead for permissive

intervention under Federal Rule ofCivil Procedure 24(b). Intervenors Russell, Spencer, Collins,


Case 1:10-cv-23968-UU Document 19 Entered on FLSD Docket 01/06/2011 Page 2 of 4

Enciso, and Easdale are residents of Florida and registered Florida voters who voted for

Amendments 5 and 6, the recently enacted amendments to the Florida Constitution concerning

redistricting reform. Russell, Spencer, and Collins are African-Americans; Enciso and Easdale

are Hispanic-Americans.

The Florida NAACP is comprised of 67 local branches throughout Florida with over

11,000 individual members. Like its national parent organization, the Florida NAACP's

missions are the advancement and improvement of the political, educational, social and

economic status of minority persons, including African-Americans; the elimination of racial

prejudice; the publicizing of adverse effects of discrimination; and the initiation of legal redress

to secure the elimination ofracial and ethnic bias. The Florida NAACP has participated actively

in litigation on behalf of Florida's minority voters, including prior litigation involving

reapportionment and redistricting. See, e.g., Florida State Conference of the NAACP v.

Browning, 522 F.3d 1153 (11 th Cir. 2008); Pleus v. Crist, 14 So. 3d 941 (Fla. 2009).

Democracia Ahora is a Florida association that is affiliated with the national Hispanic

civic organization, Democracia U.S.A. It has individual members throughout Florida.

Democracia Ahora's primary purposes are to empower Hispanic citizens who are engaged in

civic and democratic endeavors; and to assist members of Hispanic communities in identifying

and articulating issues ofconcern, including voting rights issues.

Both the Florida NAACP and Democracia Ahora worked hard to secure the passage of

Amendments 5 and 6, and participated in litigation in the Florida Supreme Court to ensure their

inclusion on the ballot. See Roberts v. Brown, 43 So.3d 673 (Fla. 2010).

As explained in the memorandum of law filed herewith, the Court should grant this

motion because Movants - African-American and Hispanic residents and voters of Florida, and

2


Case 1:1 0-cv-23968-UU Document 19 Entered on FLSD Docket 01/06/2011 Page 4 of 4

Paul M. Smith*

Michael B. DeSanctis

Eric R. Haren

Jenner & Block LLP

1099 New York Ave., N.W.

Washington, D.C. 20001

Tel: (202) 639-6000

Fax: (202) 639-6066

J. Gerald Hebert

191 Somervelle Street, #405

Alexandria, VA 22304

(703) 628-4673

*Motions to Appear Pro Hac Vice are being filed on behalfofPaul M. Smith, Michael B.

DeSanctis, Eric R. Haren, and J. Gerald Hebert.

4


020 ..


Case 1: 10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MARIO DIAZ-BALART and CORRINE )

BROWN, )

)

Plaintiffs, )

)

vs. )

)

STATE OF FLORIDA, )

) Case No. lO-CV-23968-UNGARO

Defendant, )

)

and )

)

THE AMERICAN CIVIL LIBERTIES )

UNION OF FLORIDA; HOWARD SIMON; )

BENETTA M. STANDLY, SUSAN )

WATSON, and JOYCE HAMILTON )

HENRY, )

)

Defendant-Intervenors, )

)

and )

)

FLORIDA STATE CONFERENCE OF )

NAACP BRANCHES; DEMOCRACIA )

AHORA; LEON W. RUSSELL; PATRICIA )

T. SPENCER; CAROLYN H. COLLINS; )

EDWIN ENCISO; and STEPHEN EASDALE, )

)

Defendant-Intervenors. )

)

MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE AS

DEFENDANTS

In support of their Motion for Leave to Intervene as Defendants, the Florida State

Conference ofNAACP Branches ("Florida NAACP"), Leon W. Russell, Patricia T. Spencer, and

Carolyn H. Collins (collectively the "NAACP Intervenors"), and Democracia Ahora, Edwin

Enciso, and Stephen Easdale (collectively the "Democracia Intervenors") submit this

1


Case 1: 10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 2 of 13

memorandum of law. As African-American and Hispanic registered voters who voted for

Amendments 5 and 6, and organizations representing the interests of African-American and

Hispanic voters and residents ofFlorida, Movants are entitled to intervene in this action pursuant

to Federal Rule ofCivil Procedure 24(a)(2), or the Court should permit their intervention under

Federal Rule ofCivil Procedure 24(b).

I. INTRODUCTION

In the November 2010 election, Florida voters spoke loudly and clearly in support of

fundamental reform of Florida's redistricting processes. On the ballot were "Amendment 5"

(applicable to state legislative redistricting) and "Amendment 6" (applicable to congressional

redistricting). Among other things, the Amendments prohibit the drawing of congressional and

state legislative district lines in a way that intentionally favors any particular incumbents or

political parties or that diminishes the voting strength ofFlorida's racial and language minorities.

More than .vixty-two percent of Florida voters approved Amendments 5 and 6, which are now

codified in Florida's Constitution as Article III, Section 21 and Article III, Section 20,

respectively.

Securing passage of the Amendments was an arduous endeavor. Their sponsor,

FairDistrictsFlorida.org, obtained millions of signatures from Florida voters seeking to reform

the redistricting process. Simultaneously, the Amendments' placement on the ballot was fought

every step of the way. Opponents of the measures, by some accounts, spent millions to prevent

their enactment. See Allison Ross, PAC Opposed to Amendments 5, 6 Musters $3.8 Million in a

Month, PALM BEACH POST, Oct. 30,2010. Nevertheless, the Florida Supreme Court issued two

opinions approving their placement on the ballot, see Roberts v. Brown, 43 So.3d 673 (Fla.

2010); Advisory Opinion to Attorney General re Standards For Establishing Legislative Dist.

Boundaries, 2 So.3d 175 (Fla. 2009), and the Amendments overwhelmingly passed. Now that

2


Case 1: 10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 4 of 13

organization, the Florida NAACP's missions are the advancement and improvement of the

political, educational, social and economic status of minority persons, including African­

Americans; the elimination of racial prejudice; the publicizing of adverse effects of

discrimination; and the initiation of legal redress to secure the elimination of racial and ethnic

bias. The Florida NAACP has long participated actively in litigation on behalf of Florida's

minority voters, including prior litigation involving reapportionment and redistricting. See, e.g.,

Florida State Conference ofthe NAACP v. Browning, 522 F.3d 1153 (lIth Cir. 2008); Pleus v.

Crist, 14 So. 3d 941 (Fla. 2009). Democracia Ahora is a Florida association with individual

members throughout the state, and is affiliated with the national Hispanic civic organization,

Democracia U.S.A. Democracia Ahora's primary purposes are to empower Hispanic citizens

who are engaged in civic and democratic endeavors; and to assist members of Hispanic

communities in identifying and articulating issues ofconcern, including voting rights issues.

II. THE COURT MUST PERl\UT MOVANTS TO INTERVENE AS OF RIGHT.

Under Federal Rule of Civil Procedure 24(a)(2), "[o]n timely motion, the court must

permit anyone to intervene who ... claims an interest relating to the property or transaction that

is the subject of the action, and is so situated that disposing of the action may as a practical

matter impair or impede the movant's ability to protect its interest, unless existing parties

adequately represent that interest." (emphasis added). Like groups of racial and language

minority voters in prior election law cases, Movants plainly meet this standard.

At the outset, Movants' motion is "timely." No time limit is specified in the rule, but

"[t]he requirement oftimeliness must have accommodating flexibility toward both the court and

the litigants ifit is to be successfully employed to regulate intervention in the interest ofjustice."

Chiles v. Thornburgh, 865 F.2d 1197, 1213 (lIth Cir. 1989) (quoting McDonald v. E.J Lavino

Co., 430 F.2d 1065, 1074 (5th Cir. 1970». Courts, then, have sensibly focused on prejudice in

4


Case 1:10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 5 of 13

detennining whether to permit intervention. [d. Here, there is no such prejudice. Defendant's

answer is not due until January 11, 2011, and the Court has not yet held a status conference.

Further, the parties have not engaged in any discovery, and the Court has not issued any

dispositive orders - indeed, the Court has barely issued any orders at all. In these circumstances,

the timing ofMovants' motion is entirely non-prejudicial to the parties. Movants' motion thus is

timely. ld. ("We believe that the detainees' motion to intervene was timely. It was filed only

seven months after Senator Chiles filed his original complaint, three months after the

government filed its motion to dismiss, and before any discovery had begun. None of the parties

already in the lawsuit could have been prejudiced by the detainees' intervention."); Diaz v.

Southern Drilling Carp., 427 F.2d 1118, 1125-26 (5th Cir. 1970) (motion to intervene was

timely because it would not cause delay in the process of the overall litigation even where filed

more than a year after the action was commenced and after the completion ofdiscovery); Bossier

Parish School Board v. Reno, 157 F.R.D. 133, 13S (D.D.C. 1994); Cummings v. United States,

704 F.2d 437,441 (9th Cir. 1983). Plaintiffs have conceded that the ACLU Intervenors' motion

is timely. It necessarily follows that Movants' motion is timely as well.

Movants likewise "claim an interest" that "relat[es] to the property or transaction that is

the subject of the action." Fed. R. Civ. P. 24(a)(2). Movants are Florida voters, and

organizations representing them, who actively supported the passage of Amendment 6 (now Fla.

Const. Art. Ill, § 20) and voted for its passage. As courts have recognized, voters have a direct

and substantial legal interest in maintaining the election system that governs their exercise of

political power through the electoral franchise. See Burson v. Freeman, 504 U.S. 191, 214

(1992) (Kennedy, J., concurring) ("Voting is one ofthe most fundamental and cherished liberties

in our democratic system of government."); Reynolds v. Sims, 377 U.S. 533, 555 (1964) ("The

5


Case 1:10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 6 of 13

right to vote freely for the candidate of one's choice is of the essence of a democratic society,

and any restrictions on that right strike at the heart ofrepresentative government.").

Because of the importance of that interest in our democracy, courts routinely allow

interested voters to intervene in election law cases to protect their own unique, cognizable

interests in the political process. See Abrams v. Johnson, 521 U.S. 74, 78 (1997) ("The private

appellants are various voters, defendant-intervenors below, who contend that the interests of

Georgia's black population were not adequately taken into account"); Northwest Austin Mun.

Utility Dist. No. One v. Holder, 129 S. Ct. 2504, 2508-09 (2009) (listing parties);2 Johnson v.

Mortham, 915 F. Supp. 1529, 1536 (N.D. Fla. 1995) (holding that registered voters had "a

sufficiently substantial interest to intervene" in a suit challenging congressional redistricting").

Moreover, as members ofracial and language minorities, individual Movants have an even more

acute interest in this action than do ordinary voters. Here, Plaintiffs assert constitutional and

statutory claims that, if correct (which they are not), would directly impair minority interests by

eliminating state-law protections of minority voting power - in particular the prohibition on

drawing congressional districts "with the intent or result of denying or abridging the equal

opportunity of racial or language minorities to participate in the political process or to diminish

their ability to elect representatives of their choice." Fla Const. Art III, § 20(a}. As members of

racial and language minority groups, the individual Movants have a uniquely particularized

interest in intervening. And the Eleventh Circuit and other courts have recognized that they are

entitled to do so. See. e.g., Clark v. Putnam County, 168 F.3d 458,462 (11th Cir. 1999) ("black

voters had a right to intervene" in action challenging county redistricting, and listing recent

2 The District Court for the District of Columbia, sitting with Circuit Judge David S. Tatel and

District Judges Paul L. Friedman and Emmet G. Sullivan, granted numerous such motions to

intervene in a single order. See Order, Nov. 9,2006, Dkt. # 33, Northwest Austin Mun. Sch. Dist.

No. One v. Holder, Case No. 06-1384 (D.D.C.).

6


Case 1:10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 9 of 13

Granholm v. Heald, 544 U.S. 460, 469 (2005) (noting intervention oftrade association and other

organizations to protect the interests oftheir members).

In turn, the disposition of this action may very well "impair or impede" Movants' very

significant interests. If the Court were to enjoin the enforcement of Article III, § 20 of the

Florida Constitution, individual Movants would be denied the substantial benefits of the

redistricting reform for which they and more than sixty-two percent of Florida voters cast their

ballots in November. Indeed, if Plaintiffs were to succeed in this action and the legislature were

to adopt new congressional districts that otherwise would have violated Article III, § 20's

protections for racial and language minorities and its proscription against the intentional

favoritism ofparticular parties or incumbents, Movants' interests likely will remain impaired for

a decade - until the next redistricting cycle - or more.

Finally, the existing parties will not adequately represent Movants' interests. Numerous

courts have recognized that a potential intervenor's burden on this issue is "minimal" and

requires only that existing parties' representation of a potential intervenor's interests "may be

inadequate."4 Clark, 168 F.3d at 460 (quoting Trbovich v. United Mine Workers ofAmerica, 404

U.S. 528, 538 n. 10 (1972»; Federal Sav. and Loan Ins. Corp. v. Falls Chase Special Taxing

Dist., 983 F.2d 211, 216 (11th Cir. 1993); United Guaranty Residential Insurance Co. v.

Philadelphia Sav. Fund, 819 F.2d 473, 475 (4th Cir. 1987). "Any doubt concerning the

propriety of allowing intervention should be resolved in favor of the proposed intervenors

4 Opposing the ACLU Intervenors' motions, Plaintiffs refer the Court to precedent holding that

courts should "presume adequate representation when an existing party seeks the same objectives

as the would-be interveners." Clark, 168 F.3d at 461. However, any applicable "presumption is

weak." Id. All a proposed intervenor must show is that "representation ofhis interest 'may be'

inadequate; and the burden ofmaking that showing should be treated as minimal." Id. (quoting

Trbovich v. United Mine Workers, 404 U.S. at 538 n. 10).

9


Case 1: 10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 10 of 13

because it allows the court to resolve all related disputes in a single action." Federal Sav., 983

F.2d at 216. Movants easily meet that test.

As elected officials, Plaintiffs have their own political interests at stake, and they cannot

represent Movants' interests. "[L]ike all elected officials they have an interest in 'remaining

popular and effective leaders,''' Clark, 168 F.3d at 462, and here are diametrically opposed to

Movants' position and interest.

Likewise, the defendant State of Florida (and associated elected officials and legislative

bodies) cannot represent Movants' particularized interests. Even if the State denies all the

allegations in the complaint, it necessarily represents the interests of the State as an entity or, at

best, of all citizens. It does not and cannot properly represent the singular interests of the

Movants as voters and, in particular, racial and language minority voters and organizations.

Moreover, it must weigh the vigorousness of its defense against the management of the state

coffers and competing priorities for its employees' attention. See Clark, 168 F.3d at 462. And,

of course, the State acts through elected incumbent officials, each with his or her own interest

and party affiliation. Thus, the Eleventh Circuit has explained that "because elected officials in a

majority-rule democracy may represent only part ofthe electorate (for instance, members oftheir

party), 'it is normal practice in reapportionment controversies to allow intervention ofvoters ...

supporting a position that could theoretically be adequately represented by public officials.'"

Clark, 168 F.3d at 462 n.3 (quoting Nash v. Blunt, 140 F.R.D. 400, 402 (W.D. Mo. 1992),

summarilyaff'd. sub nom., African Am. Voting Rights Legal Defense Fund. Inc. v. Blunt, 507

U.S. 1015 (1993)). Cf. Georgia v. U.S. Army Corps ofEngineers, 302 F.3d 1242, 1259 (11th

Cir. 2002) (reversing denial ofintervention as ofright where government and private intervenors

sought identical outcome of litigation, but governmental entity nevertheless could not be said to

10


Case 1:10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 11 of 13

represent proposed intervenors' motivational interests and share all of its positions). In fact,

cases are legion in which governmental entities and individual minority voters had different

motivational interests, and pursued different positions and strategies, in voting rights litigation.

See, e.g., City ofLockhart v. United States, 460 U.S. 125, 130 (1983); Blanding v. DuBose, 454

U.S. 393, 398-99 (1982); Sumter County, 555 F. Supp. at 696; United Guaranty Residential Ins.,

819 F.2d at 475 (holding that Secretary ofLabor could not adequately represent union member's

interests) (citing Trbovich, 404 U.S. at 538-39).

Nor will the proposed ACLU Intervenors, if they are permitted to intervene, adequately

represent Movants' interests. Neither group can adequately represent the other. The ACLU

Intervenors - both the organization and the individual ACLU Intervenors, who are members and

officers ofthe organization - bring to the case the ACLU's particular organizational interests and

agenda, which certainly may differ from those of the NAACP Intervenors and Democracia

Intervenors. Because of this potential divergence of interests, it is routine that non-profit

organizations like the ACLU and minority interest groups and voters such as Movants have been

permitted to intervene separately in numerous election law cases in the past. See, e.g., id. at

2508-09 (listing numerous such parties); Johnson, 915 F. Supp. at 1531-32 (same); Johnson v.

Miller, 929 F. Supp. 1529, 1531 (S.D. Ga. 1996) (three-judge court) (same); c.f. Smith v. Beasley,

946 F. Supp. 1174, 1176 (D.S.C. 1996) (three-judge court) (noting that voters represented by the

ACLU and other voters were on opposite sides of the case); Seattle Sch. Dist. No.1 ofKing

County v. Washington, 473 F. Supp. 2d 996,998 (W.O. Wash. 1979) (noting presence of ACLU

and individual plaintiffs in school desegregation case).

Because they satisfy all the requirements for intervention of right under Rule 24(a)(2),

Movants are entitled to intervene. See Chiles, 865 F.2d at 1213.

II


Case 1: 10-cv-23968-UU Document 20 Entered on FLSD Docket 01/06/2011 Page 12 of 13

III. THE COURT SHOULD GRANT PERMISSIVE INTERVENTION.

At a minimum, the Court should permit Movants to intervene pennissively. Under

Federal Rule of Civil Procedure 24(b)(1)(B), intervention is pennitted when a party seeking to

intervene "has a claim or defense that shares with the main action a common question of law or

fact." Movants will, if this motion is granted, vigorously defend their interests by arguing that

Article III, § 20 of the Florida Constitution is consistent with the U.S. Constitution and federal

law. Because that defense precisely overlaps with the question presented in the main action,

Movants can intervene in this action under Rule 24(b)(l)(B)'s plain language. Further, while the

Court undoubtedly "must consider whether the intervention will unduly delay or prejudice the

adjudication ofthe original parties' rights," Fed. R Civ. P. 24(b)(3), Movants' motion is timely

and will not prejudice any party.

IV. CONCLUSION

This action represents yet another effort to stall the implementation of a constitutional

amendment designed to refonn the redistricting process and grant minority voters new legal

protections. The electomte resoundingly approved that amendment in November, and it is now

part ofthe Florida Constitution. See Fla. Const. Art. III, § 20. Movants - as racial and language

minority Florida voters who voted for that amendment, and organizations representing such

voters - have a unique and substantial interest in this action. The Court must grant their

intervention motion.

12


021


Case 1:1 0-cv-23968-UU Document 21 Entered on FLSD Docket 01/06/2011 Page 1 of 5

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTA M. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; DEMOCRACIA

AHORA; LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; and STEPHEN EASDALE,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. IO-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

PROPOSED ANSWER OF DEFENDANT-INTERVENORS FLORIDA NAACP,

DEMOCRACIA AHORA, RUSSELL. SPENCER COLLINS, ENCISO. AND EASDALE

In accordance with Rule 8 of the Federal Rules of Civil Procedure, proposed Defendant-

Intervenors Florida State Conference of NAACP Branches, Leon W. Russell, Patricia T.

Spencer, and Carolyn H. Collins; Democracia Ahora, Edwin Enciso, and Stephen Easdale

hereby answer the amended complaint in this action as follows:

1. Individual Intervenors deny that Plaintiffs are entitled to any relief on the claims

referenced in Paragraph 1 ofthe Amended Complaint.


Case 1: 10-cv-23968-UU Document 21 Entered on FLSD Docket 01/06/2011 Page 2 of 5

2. Individual Intervenors deny that Plaintiffs are entitled to any relief on the claims

referenced in Paragraph 2 ofthe Amended Complaint.

3. Individual Intervenors admit Florida is a state in the United States, but deny that Florida

is a proper party to this lawsuit.

4. Individual Intervenors lack sufficient knowledge to admit or deny the allegations in

Paragraph 4 ofthe Amended Complaint.

5. Individual Intervenors lack sufficient knowledge to admit or deny the allegations in

Paragraph 5 ofthe Amended Complaint.

6. Individual Intervenors admit the allegations ofParagraph 6 ofthe Amended Complaint.

7. Individual Intervenors admit the allegations ofParagraph 7 ofthe Amended Complaint.

8. Individual Intervenors admit the allegations in Paragraph 8 ofthe Amended Complaint.

9. Individual Intervenors admit the allegations in Paragraph 9 ofthe Amended Complaint.

10. Individual Intervenors admit the allegations ofParagraph 10 ofthe Amended Complaint.

II. Individual Intervenors admit that Section 5 of the Voting Rights Act applies to five

Florida counties, but the other allegations in Paragraph 11 are statements of law and do not

requlfe a response.

12. Individual Intervenors admit the allegations in Paragraph 12 that Section 5 ofthe Voting

Rights Act prohibits retrogression of minority voting strength, but the remaining allegations in

paragraph 12 contain statements of law andlor conclusions of law to which no response is

required.

13. Individual Intervenors deny the allegations in Paragraph 13 ofthe Amended Complaint.

14. Individual Intervenors deny the allegations in Paragraph 14 ofthe Amended Complaint.

15. Individual Intervenors deny the allegations in Paragraph 15 ofthe Amended Complaint.

2


Case 1:10-cv-23968-UU Document 21 Entered on FLSD Docket 01/06/2011 Page 3 of 5

16. Individual Intervenors deny the allegations in Paragraph 16 ofthe Amended Complaint.

17. Individual Intervenors lack sufficient knowledge to admit or deny the allegations in

Paragraph 17.

18. Individual Intervenors repeat and reallege their responses to the allegations in Paragraph

1 though 17, as set forth above.

19. The allegations in Paragraph 19 of the Amended Complaint are statements of law and/or

conclusions oflaw to which no response is required.

20. The allegations in Paragraph 20 of the Amended Complaint are statements of law and/or

conclusions oflaw to which no response is required.

21. The allegations in Paragraph 21 of the Amended Complaint are statements of law and/or

conclusions oflaw to which no response is required.

22. The allegations in Paragraph 22 of the Amended Complaint are statements of law and/or

conclusions oflaw to which no response is required.

23. The allegations in Paragraph 23 of the Amended Complaint are statements of law and/or

conclusions oflaw to which no response is required.

24. The allegations in Paragraph 24 of the Amended Complaint are statements of law and/or

conclusions oflaw to which no response is required.

25. Individual Intervenors deny the allegations in Paragraph 25 ofthe Amended Complaint.

26. Individual Intervenors deny the allegations in Paragraph 26 ofthe Amended Complaint.

27. Individual Intervenors deny the allegations in Paragraph 27 ofthe Amended Complaint.

28. Individual Intervenors deny the allegations in Paragraph 28 ofthe Amended Complaint.

29. The allegations in Paragraph 29 ofthe Amended Complaint are statements oflaw and/or

conclusions of law to which no response is required. Nevertheless, Individual Intervenors deny

3


Case 1: 10-cv-23968-UU Document 21 Entered on FLSD Docket 01/06/2011 Page 4 of 5

that any such violation alleged in Paragraph 29 has occurred or that Plaintiffs are entitled to any

relief.

30. Individual Intervenors repeat and reallege their responses to the allegations in paragraphs

I through 17 and 19 through 29, as set forth above.

31. Individual Intervenors deny the allegations in Paragraph 31 ofthe Amended Complaint.

32. Individual Intervenors deny the allegations in Paragraph 32 ofthe Amended Complaint.

AFFIRMATIVE DEFENSES

1. Absent a waiver of sovereign immunity, the State ofFlorida is not a proper party to this

litigation and should be dismissed as the defendant.

2. Absent a proper party defendant, the Amended Complaint should be dismissed for failure

to state a claim upon which reliefcan be granted.

3. The Amended Complaint should be dismissed for failure to state a claim upon which

reliefcan be granted.

4. The Amended Complaint should be dismissed because all claims alleged therein are

unripe.

5. The Amended Complaint should be dismissed because Plaintiffs lack standing.

4


022


Case 1:10-cv-23968-UU Document 22 Entered on FLSD Docket 01/11/2011 Page 1 of 6

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTAM. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; STEPHEN EASDALE;

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. 1O-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

MOTION TO APPEAR PRO HAC VICE, CONSENT TO DESIGNATION, AND REQUEST

TO ELECTRONICALLY RECENE NOTICES OF ELECTRONIC FILING

In accordance with Local Rules 4(b) ofthe Special Rilles Governing the Admission and

Practice ofAttorneys ofthe United States District Court for the Southern District ofFlorida, the

undersigned respectfully moves for the admission pro hac vice of Eric R. Haren ofthe law finn

of Jenner & Block LLP, 1099 New York Avenue, NW, Washington, DC 20001, (202) 639-

6000, for purposes of appearance as co-counsel on behalf of proposed Defendant-Intervenors

Leon W. Russell, Patricia T. Spencer, Carolyn H. Collins, Edwin Enciso, Stephen Easdale, the


Case 1:10-cv-23968-UU Document 22 Entered on FLSD Docket 01/11/2011 Page 2 of 6

Florida State Conference of NAACP Branches ("Florida NAACP"), and Democracia Ahora in

the above-styled case only, and pursuant to Rule 2B of the CM/ECF Administrative Procedures,

to permit Eric R. Haren to receive electronic filings in this case, and in support thereof states as

follows:

1. Eric R. Haren is not admitted to practice in the Southern District of Florida and is a

member in good standing of the Bars of the following jurisdictions: California (Bar No.

250291); District of Columbia (Bar No. 985189); the U.S. Courts of Appeals for the Sixth and

Federal Circuits; and the United States Court ofFederal Claims.

2. Movant, Stephen F. Rosenthal, Esquire, of the law firm of Podhurst Orseck, P.A., 25

West Flagler Street, Suite 800, Miami, FL 33130, (305) 358-2800, is a member in good standing

of the Florida Bar and the United States District Court for the Southern District of Florida,

maintains an office in this State for the practice of law, and is authorized to file through. the

Court's electronic filing system. Movant consents to be designated as a member of the Bar of

this Court with whom the Court and opposing counsel may readily communicate regarding the

conduct of the ca.


Case 1:10-cv-23968-UU Document 22 Entered on FLSD Docket 01/11/2011 Page 5 of 6

Eric R. Haren


Case 1:1 0-cv-23968-UU Document 22-1 Entered on FLSD Docket 01/11/2011 Page 1 of 2

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTAM. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEONW. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; STEPHEN EASDALE;

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. lO-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

ORDER GRANTING MOTION TO APPEAR PRO HAC VICE, CONSENT TO

DESIGNATION, AND REQUEST TO ELECTRONICALLY RECEIVE NOTICES OF

ELECTRONIC FILING

THIS CAUSE having come before the Court on the Motion to Appear Pro Hac Vice for

Eric R. Haren, Consent to Designation, and Request to Electronically Receive Notices of

Electronic Filing (the "Motion"), pursuant to the Special Rules Governing the Admission and

Practice ofAttorneys in the United States District Court for the Southern District ofFlorida and

Section 2B ofthe CMlECF Administrative Procedures. This Court having considered the motion

and all other relevant factors, it is hereby

ORDERED AND ADJUDGED that:


Case 1:10-cv-23968-UU Document 22-1 Entered on FLSD Docket 01/11/2011 Page 2 of 2

The Motion is GRANTED. Eric R. Haren may appear and participate in this action on behalfof

proposed Defendant-Intervenors Leon W. Russell, Patricia T. Spencer, Carolyn H. Collins,

Edwin Enciso, Stephen Easdale, the Florida NAACP, and Democracia Ahora. The Clerk shall

provide electronic notification ofall electronic filings to Eric R. Haren at charcn@jenner.com.

DONE AND ORDERED in Chambers at , Florida, this day of

Copies furnished to:

All Counsel ofRecord (via electronicfiling)

United States District Judge


023


Case 1: 10-cv-23968-UU Document 23 Entered on FLS D Docket 01/11/2011 Page 2 of 6

co-counsel on behalf of proposed Defendant-Intervenors Leon W. Russell, Patlicia T. Spencer,

Carolyn H. Collins, Heather Vega, Franz Villate, the Florida State Conference of NAACP

Branches ("Florida NAACP"), and Democracia Ahora in the above-styled case only, and

pm-suant to Rule 2B of the CMlECF Administrative Procedures, to permit J. Gerald Hebelt to

receive electronic filings in this case, and in support thereof states as follows:

1. J. Gerald Hebert is not admitted to practice in the Southem District of Florida and is a

member in good standing of the Bars of the following jurisdictions: Virginia (Bar No. 48432);

Distlict of Columbia (Bar No. 447676); U.S. Disuict Court for the Bastem Distlict of Virginia;

and the U.S. District COUlt for the Distlict of Columbia. I am also a member of the bar in good

standing of the United States Courts of Appeals for the Fifth, Eighth and Eleventh Circuits, and a

member of the bar in good standing of the United States Supreme Court.

2. Movant, Stephen F. Rosenthal, Esquire, of the law firm of Podhurst Orseck, P.A., 25

West Flagler Street, Suite 800, Miami, FL 33130, (305) 358-2800, is a member of good standing

of the Florida Bar and the United States Disu'jct COUlt for the Southem District of Florida,

maintains an office in this State for the practice of law, and is authorized to file through the

Court's electronic filing system. Movant consents to be designated as a member of the Bar of

this Court with whom the Court and opposing counsel may readily communicate regarding the

conduct of the case, upon whom filings shall be served, who shall be required to electronically

file all documents and things that may be filed electronically, and who shall be responsible for

filing documents in compliance with the CMIECF Administrative Procedures. See Section 2B of

the CMJECF Administl'ative Procedures.

3, In accordance with the local rules of this Court, J. Gerald Hebert has made payment of

this Court's $75 admission fee. A celtification in accordance with Rule 4(b) is attached hereto.


Case 1: 10-cv-23968-UU Document 23 Entered on FLSD Docket 01/11/2011 Page 3 of 6

4. J. Gerald Hebert, by and through designated counsel and pursuant to Section 2B CMlECF

Adminisb:ative Procedures, hereby requests the COUlt to provide Notice of Electronic Filings to

J. Gerald Hebelt at the email address GHebelt@campaignlegalcenter.org.

WHEREFORE, Stephen F. Rosenthal, moves this Court to enter an Order permitting J.

Gerald Hebert to appear before this COUlt on behalf of Defendant-Intervenors Leon W. Russell,

Patlicia T. Spencer, Carolyn H. Collins, I1eather Vega, Franz Villate, the Florida NAACP, and

Democracia Ahara for all purposes relating to the proceedings in the above-styled matter and

directing the Clerk to provide notice of electronic filings to J. Gerald Hebelt.

Date: January ({ 2011 Respectfully submitted,

Is

Stephen F. Rosenthal

Fla. Bar No. 0131458

Podhm'st Orseck P.A.

25 West Flagler Street, Suite 800

Miami, FL33130

Office (305) 358-2800

srosenthaJ @podhurst.com


Case 1:1 0-cv-23968-UU Document 23 Entered on FLSD Docket 01/11/2011 Page 4 of 6

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OFf1...0RIDA,

Defendant,

and

THE AMERICAJ.'f CIVIL LffiERTlES UNION

OF FLORIDA; HOWARD SIMON;

BENETTA M. STANDLY, SUSAN

WATSON. and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PAlRICIA

T. SPENCER; CAROLYN H. COLLINS;

HEATHER VEGA; and FRANZ VlLLATE,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHER..1\;[ DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) ) Case No. 1O-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CERTIFICATION OF J. GERALD HEBERT

I, J. Gerald Hebelt, Esquire, pursuant to Rule 4(b) of the Special Rules Governing the

Admission and Practice of Attorneys. hereby celtify that (1) I have studied the Local Rules ofthe

United States District Couti for the Southem District of Flotida; and (2) I am a member in good

standing of the Bars of the following jurisdictions: Virginia (Bar No. 48432); District of

Columbia (Bar No. 447676); the Supreme Court of the United States; the United States Courts of

Appeals for the Fifth, Eighth and Eleventh Circuits; the U.S. District Court for the Eastern

Distlict of Virginia; and the U.S. District Court for the District of Columbia.


Case 1:10-cv-23968-UU Document 23 Entered on FLSD Docket 01/11/2011 Page 5 of 6


Case 1: 10-cv-23968-UU Document 23-1 Entered on FLSD Docket 01/11/2011 Page 1 of 2

MARIO DIAZ-BALART and CORRINE

BROWN.

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA; HOWARD SlMON;

BENETTAM. STANDLY, SUSAN

WATSON. and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

HEATHER VEGA; and FRANZ VILLATE.

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. 1O-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

ORDER GRANTING MOTION TO APPEAR PRO HAC VICE, CONSENT TO

DESIGNATION, AND REQUEST TO ELECTRONICALLY RECEIVE NOTICES OF

ELECTRONIC FILING

TillS CAUSE having come before the COUlt On the Motion to Appear Pro Hac Vice for

J. Gerald Hebert, Consent to Designation, and Request to Electronically Receive Notices of

Electronic Filing (the "Motion"), pursuant to the Special Rules Governing the Admission and

Practice of Attorneys in the United States Distdct Cowt for the Southern District of Florida and

Section 2B of the CMlECF Administrative Procedures. This Court having considered the motion

and all other relevant factors. it is hereby

ORDERED AND ADJUDGED that:

The Motion is GRANTED. J. Gerald Hebett may appear and pmticipate in this action on behalf

of proposed Defendant-Intervenors Leon W. Russell, Patricia T. Spencer, Carolyn H. Collins,


Case 1:10-cv-23968-UU Document 23-1 Entered on FLSD Docket 01/11/2011 Page 2 of 2

Heather Vega, Franz Vil1ate, the Florida NAACP, and Democracia Ahara. The Clerk shall

provide electronic notification of all electronic filings to J. Gerald Hebel1 at

OHebelt@campaighlegalceoter.org.

DONE AND ORDERED in Chambers at " Florida, this day of

Copies furnished to:

All Counsel of Record (via electronicfiling)

United States District Judge


024


Case 1:1 0-cv-23968-UU Document 24 Entered on FLSD Docket 01/11/2011 Page 1 of 6

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTAM. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; STEPHEN EASDALE;

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No.1O-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

MOTION TO APPEAR PRO HAC VICE, CONSENT TO DESIGNATION, AND REQUEST

TO ELECTRONICALLY RECEIVE NOTICES OF ELECTRONIC FILING

In accordance with Local Rules 4(b) ofthe Special Rules Governing the Admission and

Practice ofAttorneys ofthe United States District Court for the Southern District ofFlorida, the

undersigned respectfully moves for the admission pro hac vice of Michael B. DeSanctis of the

law firm ofJenner & Block LLP, 1099 New York Avenue, NW, Washington, DC 20001, (202)

639-6000, for purposes of appearance as co-counsel on behalf of proposed Defendant-

Intervenors Leon W. Russell, Patricia T. Spencer, Carolyn H. Collins, Edwin Enciso, Stephen


Case 1:10-cv-23968-UU Document 24 Entered on FLSD Docket 01/11/2011 Page 2 of 6

Easdale, the Florida State Conference of NAACP Branches ("Florida NAACP"), and

Democracia Ahora in the above-styled case only, and pursuant to Rule 2B of the CMJECF

Administrative Procedures, to permit Michael B. DeSanctis to receive electronic filings in this

case, and in support thereof states as follows:

1. Michael B. DeSanctis is not admitted to practice in the Southern District ofFlorida and is

a member in good standing of the Bars ofthe following jurisdictions: District ofColumbia (Bar

No. 460961); New Jersey (Bar No. 1009-1998); New York (Bar No. 2876803); Supreme Court

of the United States; the U.S. Courts of Appeals for the Second, Third, Fourth, Sixth, Ninth,

Eleventh, and District ofColumbia Circuits; the U.S. District Court for the District ofColumbia;

the U.S. District Court for the District of Maryland; the U.S. District Court for the District of

New Jersey; and the U.S. District Court for the Southern District ofNew York.

2. Movant, Stephen F. Rosenthal, Esquire, of the law firm of Podhurst Orseck, P.A., 25

West Flagler Street, Suite 800, Miami, FL 33130, (305) 358-2800, is a member in good standing

of the Florida Bar and the United States District Court for the Southern District of Florida,

maintains an office in this State for the practice of law, and is authorized to file through the

Court's electronic filing system. Movant consents to be designated as a member of the Bar of

this Court with whom the Court and opposing counsel may readily communicate regarding the

conduct of the case, upon whom filings shall be served, who shall be required to electronically

file all documents and things that may be filed electronically, and who shall be responsible for

filing documents in compliance with the CMJECF Administrative Procedures. See Section 2B of

the CMlECF Administrative Procedures.


Case 1:1 0-cv-23968-UU Document 24 Entered on FLSD Docket 01/11/2011 Page 4 of 6

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LffiERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTAM. STANDLY, SUSAN

WATSON, and JOYCE HAMILTONHEl'-t'RY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; STEPHEN EASDALE;

FLORlDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. lO-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CERTIFICAnON OF MICHAEL B. DESANCTIS

I, Michael B. DeSanctis, Esquire, pursuant to Rule 4(b) of the Special Rules Governing

the Admission and Practice ofAttorneys, hereby certify that (1) I have studied the Local Rules of

the United States District Court for the Southern District of Florida; and (2) I am a member in

good standing ofthe Bars ofthe following jurisdictions: District ofColumbia (Bar No. 460961);

New Jersey (Bar No. 1009-1998); New York (Bar No. 2876803); Supreme Court of the United

States; the U.S. Courts of Appeals for the Second, Third, Fourth, Sixth, Ninth, Eleventh, and


Case 1:10-cv-23968-UU Document 24 Entered on FLSD Docket 01/11/2011 Page 5 of 6

District Court for the District ofMaryland; the u.s. District Court for the District ofNew Jersey;

and the U.S. District Court for the Southern District ofNew York.


Case 1:10-cv-23968-UU Document 24-1 Entered on FLSD Docket 01/11/2011 Page 1 of 2

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIBERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTAM. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; STEPHEN EASDALE;

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No.1O-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

ORDER GRANTING MOTION TO APPEAR PRO HAC VICE, CONSENT TO

DESIGNATION, AND REQUEST TO ELECTRONICALLY RECEIVE NOTICES OF

ELECTRONIC FILING

THIS CAUSE having come before the Court on the Motion to Appear Pro Hac Vice tor

Michael B. DeSanctis, Consent to Designation, and Request to Electronically Receive Notices of

Electronic Filing (the "Motion"), pursuant to the Special Rules Governing the Admission and

Practice of Attorneys in the United States District Court tor the Southern District of Florida and

Section 2B of the CMIECF Administrative Procedures. This Court having considered the motion

and all other relevant factors, it is hereby

ORDERED AND ADJUDGED that:


Case 1:10-cv-23968-UU Document 24-1 Entered on FLSD Docket 01/11/2011 Page 2 of 2

The Motion is GRANTED. Michael B. DeSanctis may appear and participate in this action on

behalf of proposed Defendant-Intervenors Leon W. Russell, Patricia T. Spencer, Carolyn H.

Collins, Edwin Enciso, Stephen Easdale, the Florida NAACP, and Democracia Ahara. The

Clerk shall provide electronic notification of all electronic filings to Michael B. DeSanctis at

mdesanctis(lujenner.com.

DONE AND ORDERED in Chambers at , Florida, this _

Copies furnished to:

All Counsel ofRecord (via electronicfiling)

United States District Judge

day of


025


Case 1: 10-cv-23968-UU Document 25 Entered on FLSD Docket 01/11/2011 Page 1 of 6

MARIO DIAZ-BALART and CORRINE

BROWN,

Ys.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LffiERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTAM. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; STEPEHN EASDALE;

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. lO-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

MOTION TO APPEAR PRO HAC VICE, CONSENT TO DESIGNATION, AND REQUEST

TO ELECTRONICALLY RECEIVE NOTICES OF ELECTRONIC FILING

In accordance with Local Rilles 4(b) ofthe Special Rules Governing the Admission and

Practice ofAttorneys ofthe United. States District Court for the Southern District ofFlorida, the

undersigned respectfully moves for the admission pro hac vice ofPaul M. Smith ofthe law firm

of Jenner & Block LLP, 1099 New York Avenue, NW, Washington, DC 20001, (202) 639-

6000, for purposes of appearance as co-counsel on behalf of proposed Defendant-Intervenors

Leon W. Russell, Patricia T. Spencer, Carolyn H. Collins, Edwin Enciso, Stephen Easdale, the

Florida State Conference of NAACP Branches ("Florida NAACP"), and Democracia Ahora in


Case 1:1 0-cv-23968-UU Document 25 Entered on FLSD Docket 01/11/2011 Page 2 of 6

the above-styled case only, and pursuant to Rule 2B ofthe CMfECF Administrative Procedures,

to permit Paul M. Smith to receive electronic filings in this case, and in support thereof states as

follows:

1. Paul M. Smith is not admitted to practice in the Southern District of Florida and is a

member in good standing of the Bars of the following jurisdictions: District of Columbia (Bar

No. 358870); Maryland (Bar No. 27182); New York (Bar No. 4372447); the Supreme Court of

the United States; the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth. Tenth, Eleventh, District of Columbia, and Federal Circuits; the U.S.

District Court for the District of Columbia; the U.S. District Court for the District of Colorado;

the U.S. District Court for the Northern District ofIllinois; the U.S. District Court for the District

ofMaryland; and the U.S. District Court for the Southern District ofNew York.

2. Movant, Stephen F. Rosenthal, Esquire, of the law firm of Podhurst Orseck, P.A., 25

West Flagler Street, Suite 800, Miami, FL 33130, (305) 358-2800, is a member ofgood standing

of the Florida Bar and the United States District Court for the Southern District of Florida,

maintains an office in this State for the practice of law, and is authorized to file through the

Court's electronic filing system. Movant consents to be designated as a member of the Bar of

this Court with whom the Court and opposing counsel may readily communicate regarding the

conduct of the case, upon whom filings shall be served, who shall be required to electronically

file all documents and things that may be filed electronically, and who shall be responsible for

tiling documents in compliance with the CM/ECF Administrative Procedures. See Section 2B of

the CMlECF Administrative Procedures.

3. In accordance with the local rules ofthis Court, Paul M. Smith has made payment ofthis

Court's $75 admission fee. A certification in accordance with Rule 4(b) is attached hereto.


Case 1:10-cv-23968-UU Document 25-1 Entered on FLSD Docket 01/11/2011 Page 2 of 2

Edwin Enciso, Stephen Easdale, the Florida NAACP, and Democracia Ahora. The Clerk shall

provide electronic notification ofall electronic filings to Paul M. Smith at psmith«l1jenner.com.

DONE AND ORDERED in Chambers at , Florida, this day of

Copies furnished to:

All Counsel ofRecord (via electronicfiling)

United States District Judge


026


Case 1:10-cv-23968-U U Document 26 Entered on FLSD Docket 01/11/2011 Page 1 of 2

MARIO DIAZ-BALART and

CORRINE BROWN,

v.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

---------------'/

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10-CV-23968-UNGARO

DEFENDANT'S MOTION TO DISMISS

Defendant, the STATE OF FLORIDA, moves to dismiss this case pursuant

to Rule 12(b)(1), Fed. R. Civ. P., and states:

1. This court lacks subject matter jurisdiction over Plaintiffs' claim under

Art. I, § 4, U.S. Const., based on the State's Eleventh Amendment

immunity.

2. This Court lacks subject matter jurisdiction over plaintiffs' claim under

the Voting Rights Act because the District Court for the District of

Columbia has exclusive jurisdiction over substantive claims under § 5 of

the Act.

WHEREFORE, Defendant, the State ofFlorida, respectfully requests that

this court enter an order dismissing this case.

1


Case 1:10-cv-23968-UU Document 26 Entered on FLSD Docket 01/11/2011 Page 2 of 2

Respectfully submitted this 11th Day of January ,2011.

CERTIFICATE OF SERVICE

PAMELA JO BONDI

ATTORNEY GENERAL

s/Jonathan A. Glogau

Jonathan A. Glogau

Chief, Complex Litigation

Fla. Bar No. 371823

Timothy Osterhaus

Deputy Solicitor General

Fla. Bar No. 0133728

PL-O 1, The Capitol

Tallahassee, FL 32399-1050

850-414-3300, ext. 4817

850-414-9650 (fax)

jon.glogau@myfloridalegal.com

I HEREBY CERTIFY that on January 11,2011, I electronically filed the

foregoing document with the Clerk ofthe Court using CMlECF.

2

s/Jonathan A. Glogau

Attorney


027


Case 1:10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 1 of 8

MARIO DIAZ-BALART and CORRINE

BROWN,

v.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

___________---:1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10-CV-23968-UNGARO

DEFENDANT'S MEMORANDUM IN SUPPORT

OF MOTION TO DISMISS

Plaintiffs, two minority members ofthe United States House ofRepresentatives

representing districts in Florida, have sued the State ofFlorida challenging the validity of

newly-enacted article III, section 20, ofthe Florida Constitution ("Amendment 6"). Florida's

voters passed Amendment 6, which was a citizens' initiative (see art. XI, § 3, Fla. Const.) in the

November, 2010 General Election. Plaintiffs allege that Amendment 6 conflicts with article I,

section 4, ofthe United States Constitution and violates section 5 ofthe Voting Rights Act.

Amendment 6 states:

§ 20. Standards for establishing congressional district boundaries

In establishing Congressional district boundaries:

(1) No apportionment plan or individual district shall be drawn with the

intent to favor or disfavor a political party or an incumbent; and districts

shall not be drawn with the intent or result of denying or abridging the

equal opportunity of racial or language minorities to participate in the

political process or to diminish their ability to elect representatives oftheir

choice; and districts shall consist ofcontiguous territory.


Case 1:10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 2 of 8

(2) Unless compliance with the standards in this subsection conflicts with

the standards in subsection (1) or with federal law, districts shall be as

nearly equal in population as is practicable; districts shall be compact; and

districts shall, where feasible, utilize existing political and geographical

boundaries.

(3) The order in which the standards within sub-sections (1) and (2) ofthis

section are set forth shall not be read to establish any priority of one

standard over the other within that subsection.

For the reasons discussed below, this Court should dismiss Plaintiffs' claims pursuant to

Federal Rule ofCivil Procedure 12(b)(1), because it lacks jurisdiction over the article I, section

4 claim in view ofthe State ofFlorida's Eleventh Amendment immunity, and Plaintiffs' section

5 (Voting Rights Act) claim cannot be adjudicated in this Court because exclusive jurisdiction

lies with the United States District Court for the District ofColumbia.

I. The Court Lacks Subject Matter Jurisdiction over Plaintiffs' Article I, § 4based

Claim Due to the State's Eleventh Amendment Immunity.

Plaintiffs claim that Amendment 6 is preempted by article I, section 4, ofthe United

States Constitution. This claim, however, is barred by the State's Eleventh Amendment

immunity. It is axiomatic that, absent consent, or abrogation by Congress, a state is immune

from suit in federal court. As the United States Supreme Court stated in Seminole Tribe: "For

over a century we have reaffirmed that federal jurisdiction over suits against unconsenting

States 'was not contemplated by the Constitution when establishing the judicial power ofthe

United States.'" Seminole Tribe ofFla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Hans v.

Louisiana, 134 U.S. 1, 15 (1890)). The State ofFlorida has not consented to suit; therefore, to

bring such a claim against the State, Plaintiffs must show that Congress has abrogated the

States' immunity by a clear statement ofintent to abrogate and acts via a valid exercise of

2


Case 1: 10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 3 of 8

congressional powers. Seminole Tribe ofFla., 517 U.S., at 56; Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 242-43 (1985).

Congressional intent to abrogate the States' immunity from suit must be obvious from "a

clear legislative statement." Blatcliford v. Native Vill. ofNoatak & Circle Vill., 501 U.S. 775,

786 (1991). This rule arises from the important role played by the Eleventh Amendment and the

broader principles it reflects. See Atascadero State Hosp., 473 U.S., at 238-239; Quern v.

Jordan, 440 U.S. 332, 345 (1979). In Atascadero, the Court held that "[a] general authorization

for suit in federal court is not the kind ofunequivocal statutory language sufficient to abrogate

the Eleventh Amendment." 473 U.S., at 246, see also Blatchford, supra, at 786, n.4 ("The fact

that Congress grants jurisdiction to hear a claim does not suffice to show Congress has

abrogated all defenses to that claim") (emphasis deleted). The Court further held:

To temper Congress' acknowledged powers of abrogation with due concern for

the Eleventh Amendment's role as an essential component of our constitutional

structure, we have applied a simple but stringent test: Congress may abrogate the

States' constitutionally secured immunity from suit in federal court only by

making its intention unmistakably clear in the language ofthe statute.

Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989); see also Welch v. Tex. Dept. ofHighways &

Public Transp., 483 U.S. 468, 474 (1987) (plurality opinion).

Pursuant to the seminal case ofEx Parte Young and its progeny, an exception to

Eleventh Amendment immunity exists when suit is brought against a state officer, in his official

capacity, seeking prospective reliefto enjoin an ongoing violation offederal law. Ex Parte

Young, 209 U.S. 123 (1908). Here, however, Plaintiffs have sued only the "State ofFlorida"

and have articulated no applicable exception to its sovereign immunity; sovereign immunity

thereby bars Plaintiffs' claims.

3


Case 1:10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 4 of 8

As grounds for jurisdiction, Plaintiffs cite 28 U.S.C. sections 2201-2202 (Declaratory

Judgment Act), 28 U.S.C. section 1331 (general federal question jurisdiction) and 28 U.S.C.

section 1346(a)(2) (suits against the United States). Later in the Amended Complaint, Plaintiffs

cite 42 U.S.c. section 1983. These statutes either contain no clear statement ofintent to

abrogate or were not passed via a valid exercise ofcongressional powers or both; they,

therefore, do not validly abrogate the State's immunity.

Plaintiffs' citation ofthe Declaratory Judgment Act is insufficient to establish

jurisdiction. Passage ofthat Act was not intended to and could not have abrogated the State's

Eleventh Amendment immunity because it passes neither ofthe tests ofabrogation: it contains

no clear statement ofintent to abrogate and the congressional authority for the passage ofthe

Act is insufficient for the task. See Ameritech Corp. v. McCann, 176 F. Supp. 2d 870 (E.D. Wis.

2001). In McCann, the court determined that Congress acted pursuant to its powers under

article III ofthe Constitution rather than section 5 ofthe Fourteenth Amendment; for this

reason, the court held that "the creation ofa federal declaratory judgment remedy... did not

abrogate the sovereign immunity ofthe States." Id. at 877; see also Comfort ex reI. Neumyer v.

Lynn Sch., 131 F. Supp. 2d 253,255 (D. Mass. 2001) ("Sovereign immunity bars counts for

declaratory reliefunder 28 U.S.C. §§ 2201 & 2202 because those actions do not arise under

Congress' valid exercise ofits Fourteenth Amendment Enforcement Clause power.")

Similarly, 28 USC section 1331 is insufficient. In Blatchford, the Native Villages argued

that 28 U.S.C. section 1362 served to abrogate the State's immunity. 501 U.S., at 786. The

Court held:

§ 1362 does not reflect an ''unmistakably clear" intent to abrogate immunity,

made plain "in the language ofthe statute." As we have already noted, the text is

no more specific than § 1331, the grant of general federal-question jurisdiction to

4


Case 1:10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 5 of 8

district courts, and no one contends that § 1331 suffices to abrogate immunity for

all federal questions.

Id (citation omitted). Abrogation under section 1331 would eviscerate the Eleventh

Amendment for all federal question cases, a proposition no court has ever seriously entertained.

Reliance on 42 U.S.C. section 1983 is also unavailing. Although passed pursuant to

section 5 ofthe Fourteenth Amendment, abrogation language is missing. The State is not a

"person" under section 1983 and its Eleventh Amendment immunity has not been affected. Will

v. Mich. Dept. ofState Police, 491 U.S. 58, 71 (1989) ("We hold that neither a State nor its

officials acting in their official capacities are "persons" under § 1983."). Finally, 28 U.S.C.

section 1346(a)(2) is inapposite because this suit is not against the United States.

This Court should thus dismiss Plaintiffs' article I, section 4, claim for lack ofsubject

matter jurisdiction in view ofthe State ofFlorida's Eleventh Amendment immunity.

II. The United States District Court for the District of Columbia Has Exclusive

Jurisdiction Over This Suit

Plaintiffs' second claim - that implementation ofAmendment 6 will cause retrogression

ofminority voting rights and therefore that it is invalid under section 5 ofthe Voting Rights Act

("Section 5") - must also be dismissed for jurisdictional reasons because the United States

District Court for the District ofColumbia retains exclusive jurisdiction over this sort ofclaim.

The courts have recognized two basic types ofsuit under Section 5: suits to enjoin

enforcement ofa newly enacted law until it receives preclearance either from the United States

Attorney General or the D.C. District Court; and suits challenging the substance ofnewly

enacted voting provision as having a discriminatory purpose or effect. See Perkins v. Matthews,

400 U.S. 379, 383-385 (1971) (Congress intended to treat 'coverage' questions differently from

'substantive discrimination' questions) (citing Allen v. State Bd ofElections, 393 U.S. 544

5


Case 1:10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 6 of 8

(1969)). As to suits grounded in the former allegations, the Supreme Court in Allen held that the

D.C. District Court restriction provided in section 14(b) ofthe Voting Rights Ad does not

apply, insofar as the suit brought by private litigants seeks only a declaration that a state

enactment is subject to the approval requirements ofSection 5; these actions may be brought in

a local district court outside the District ofColumbia. 393 U.S. at 560. Thus, in Connor v.

Waller, 421 U.S. 656 (1975), the Court held that the Mississippi laws were required to be

submitted pursuant to section 5 ofthe Voting Rights Act; that those laws would not be effective

until and unless cleared pursuant to section 5; and that the District Court erred in deciding the

constitutional challenges to the Acts based upon claims ofracial discrimination. In other words,

the District Court should have decided the coverage question - the laws required preclearance;

and should not have reached the racial discrimination claim which was the sole province ofthe

D.C. District. See also Bone Shirt v. Hazeltine, 200 F.Supp.2d 1150, 1153 (D.S.D. 2002) ("This

court plays only a limited role in enforcing § 5. The statute vests exclusive preclearance

authority in the Attorney General and the District ofColumbia District Court. Accordingly, we

lack authority to decide the merits ofwhether any voting change in the 2001 Plan had the

purpose or will have the effect proscribed by § 5"); State olS.C. v. United States, 589 F.Supp.

757, 759 -760 (D.D.C. 1984) (holding in a substantive preclearance matter that "this Court is

the only court in the land where the matter can be heard at all").

District courts other than the D.C. District may adjudicate claims that preclearance has

not been obtained where it was needed (see Riley v. Kennedy, 553 U.S. 406 (2008) (affirming a

three-judge district court panel in Alabama that invalidated a gubernatorial appointment for

1 Section 14(b) provides "No court other than the District Court for the District ofColumbia

shall have jurisdiction to issue any declaratory judgment pursuant to section 1973b or 1973c of

this title...."

6


Case 1:10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 7 of 8

failing to comply with preclearance requirement ofthe Voting Rights Act)); or enjoin elections

for failure to obtain preclearance (Clark v. Roemer, 500 U.S. 646 (1991) (holding that the

district court should have enjoined the state from conducting elections for judicial seats

pursuant to voting statutes which had not obtained requisite judicial or administrative

preclearance)). However, the D.C. District Court has exclusive jurisdiction to hear cases

alleging substantive violations ofSection 5 - i.e. that a qualification, prerequisite, standard,

practice, or procedure neither has the purpose nor will have the effect ofdenying or abridging

the right to vote on account ofrace or color, or in contravention ofthe guarantees set forth in

[the Act]."

This case is in the latter category. Plaintiffs have alleged only a substantive Section 5

violation, which claims are the exclusive province ofthe D.C. District Court. As such, this

Court lacks jurisdiction to adjudicate Plaintiffs' Voting Rights Act claim and it should be

dismissed.

CONCLUSION

Plaintiffs' claim against the State ofFlorida under article I, section 4, ofthe United

States Constitution is barred under Eleventh Amendment immunity principles. The statutes

upon which the Plaintiffs rely for jurisdiction in this case do not unequivocally express

Congressional intent to abrogate Eleventh Amendment immunity, nor were they passed with the

requisite authority (or both). As to Plaintiffs' Voting Rights Act claim, the District Court for the

District ofColumbia has exclusive jurisdiction over substantive claims, such as this, under

Section 5. Dismissal is thereby proper.

7


Case 1: 10-cv-23968-UU Document 27 Entered on FLSD Docket 01/11/2011 Page 8 of 8

Respectfully submitted this 11 th day of JanuaIY , 2011.

CERTIFICATE OF SERVICE

PAMELA JO BONDI

ATIORNEY GENERAL

s/Jonathan A. Glogau

Jonathan A. Glogau

Chief, Complex Litigation

Fla. Bar No. 371823

Timothy Osterhaus

Deputy Solicitor General

Fla. Bar No. 0133728

PL-Ol, The Capitol

Tallahassee, FL 32399-1050

850-414-3300, ext. 4817

850-414-9650 (fax)

jon.glogau@myfloridalegal.com

I HEREBY CERTIFY that on January 11,2011, I electronically filed the foregoing

document with the Clerk ofthe Court using CMlECF.

8

s/Jonathan A. Glogau

Attorney


028


Case 1:10-cv-23968-UU Document 28 Entered on FLSD Docket 01/12/2011 Page 2 of 10

co-counsel on behalf of proposed Defendant-Intervenors Leon W. Russell, Patticia T. Spencer,

Carolyn H. Collins, Heather Vega, Franz Villate, the Florida State Conference of NAACP

Branches ("Florida NAACP"), and Democracia Ahom in the above-styled case only, and

pursuant to Rule 2B of the CMlECF Administrative Procedures, to pemlit J. Gerald Hebelt to

receive electronic filings in this case, and in SUppOlt thereof states as follows:

1. J. Gerald Hebelt is not admitted to practice in the Southem District of Florida and is a

member in good standing of the Bars of the following jurisdictions: Virginia (Bar No. 48432);

District of Columbia (Bar No. 447676); u.s. District COUlt for the Eastem District of Virginia;

and the U.S. District Court for the District of Columbia. I am also a member of the bar in good

standing of the United States Courts of Appeals for the Fifth, Eighth and Eleventh Circuits, and a

member of the bar in good standing of the United States Supreme Court.

2. Movant, Stephen F. Rosenthal, Esquire, of the law firm of Podhurst Orseck, P.A., 25

West Flagler Street, Suite 800, Miami, FL 33130, (305) 358-2800, is a member of good standing

of the Florida Bar and the United States District COUlt for the Southern District of Florida,

maintains an office in this State for the practice of law, and is authorized to file through the

Court's electronic filing system. Movant consents to be designated as a member of the Bar of

this Cowt with whom the COUlt and opposing counsel may readily communicate regarding the

conduct of the case, upon whom filings shall be served, who shall be required to electronically

file all documents and things that may be filed electronically, and who shall be responsible for

filing documents in compliance with the CMJECF Administrative Procedures. See Section 2B of

the CM/ECF Administrative Procedures.

3. In accordance with the local rules of this Court. J. Gerald Hebert has made payment of

this C0U11's $75 admission fee. A celtification in accordance with Rule 4(b) is attached hereto.


Gase 1: 10-cv-23968-UU Document 28 Entered on FLSD Docket 01/12/2011 Page 3 of 10

4. J. Gerald Hebelt, by and through designated counsel and pursuant to Section 2B CMlECF

Administrative Procedw-es, hereby requests the COUIt to provide Notice of Electronic Filings to

J. Gerald Hebert at the email address GHebert@campaignlegalcenter.org.

WHEREFORE, Stephen F. Rosenthal, moves this Court to enter an Order permitting J.

Gerald Hebert to appear before this Court on behalf of Defendant-Intervenors Leon W. Russell,

Pauicia T. Spencer, Carolyn H. Collins, Heather Vega, Franz Villate, the Florida NAACP, and

Democracia Ahara for all purposes relating to the proceedings in the above-styled matter and

directing the Clerk to provide notice of electronic filings to 1. Gerald Hebert

Date: January fL, 2011 Respectfully submitted,

Is

Stephen F. Rosenthal

Fla. Bar No. 0131458

Podhurst Orseck P.A.

25 West Flagler SU'eet, Suite 800

Miami, FL 33130

Office (305) 358-2800

srosenthal@podhurst.com


Case 1: 10-cv-23968-UU Document 28 Entered on FLSD Docket 01/12/2011 Page 4 of 10

MARTO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN ClVIL LIBERTlES UNION

OF FLORIDA; HOWARD SIMON;

BENETTA M. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

HEATHER VEGA; and FRANZ VILLATE,

Defendant-Intervenors.

UNITED STAT.ES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No. lO-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CERTIFICATION OF J. GERALD HEBERT

I, J. Gerald Hebert, Esquire, pursuant to Rule 4(b) of the Special Rules Governing the

Admission and Practice of Attorneys, hereby certify that (1) I have studied the Local Rules of the

United States District Comt for the Southern District of Florida; and (2) I am a member in good

standing of the Bars of the following jmisdictions: Virginia (Bar No. 48432); District of

Columbia (Bar No. 447676); the Supreme Cowt of the United States; the United States Courts of

Appeals for the Fifth, Eighth and Eleventh Circuits; the U.S. District Comt for the Easte111

Disnict of Virginia; and the U.S. District Court for the District of Columbia.


Case 1: 10-cv-23968-UU Document 28 Entered on FLSD Docket 01/12/2011 Page 5 of 10


Gase 1: 10-cv-23968-UU Document 28 Entered on FLSD Docket 01/12/2011 Page 8 of 10

Heather Vega, Franz Villate, the Florida NAACP, and Democracia Ahara. The Clerk shall

provide electronic notification of all electronic filings to J. Gerald Hebert at

GHehert@campaignlegalcenter.org.

DONE AND ORDERED in Chambers at , Florida, this _

Copies furnished to:

All Counsel of Record (via electronicfiling)

United States District Judge

day of


Case 1:10-cv-23968-UU Document 28 Entered on FLSD Docket 01/12/2011 Page 10 of 10

Original filename: n/a

Electronic document Stamp:

[STAMP dcecfStamp ID=1105629215 [Date=1/11/2011] [FileNumber=8376691-0]

[637fB6dBfa2f4b7fllBbcOb6df89dec8db019703c30cbdca424354485978df2f4bbb65bedb22257aldd9b5494

a82gec9c5f35994be520e9a8b463e650d7376fb]]

Document description: Text of Proposed Order original filename: n/a Electronic document

Stamp:

[STAMP dcecfStamp ID=1105629215 [Date=1/11/2011] [FileNumber=8376691-1]

[9dfb5fOea47a9487d5f62c66afadc61e942dle5688815216ece434db28cadf642769fc82e9a5630f04af6ab5c

037e6031f602e050634aOd131e984358f79cbbO]]

2


029


Ca,se 1: 10-cv-23968-UU Document 29 Entered on FLSD Docket 01/12/2011 Page 2 of 10

Easdale, the Florida State Conference of NAACP Branches ("'Florida NAACP"), and

Democracia Ahora in the above-styled case only, and pursuant to Rule 2B of the CM/ECF

Administrative Procedures, to pennit Michael B. DeSanctis to receive electronic filings in this

case, and in support thereof states as follows:

1. Michael B. DeSanctis is not admitted to practice in the Southern District ofFlorida and is

a member in good standing ofthe Bars ofthe following jurisdictions: District ofColumbia (Bar

No. 460961); New Jersey (Bar No. 1009-1998); New York (Bar No. 2876803); Supreme Court

of the United States; the U.S. Courts of Appeals for the Second, Third, Fourth, Sixth, Ninth,

Eleventh, and District of Columbia Circuits; the U.S. District Court for the District ofColumbia;

the U.S. District Court for the District of Maryland; the U.S. District Court for the District of

New Jersey; and the U.S. District Court for the Southern District ofNew York.

2. Movant, Stephen F. Rosenthal, Esquire, of the law finn of Podhurst Orseck, P.A., 25

West Flagler Street, Suite 800, Miami, FL 33130, (305) 358-2800, is a member in good standing

of the Florida Bar and the United States District Court for the Southern District of Florida,

maintains an office in this State for the practice of law, and is authorized to file through the

Court's electronic filing system. Movant consents to be designated as a member of the Bar of

this Court with whom the Court and opposing counsel may readily communicate regarding the

conduct of the case, upon whom filings shall be served, who shall be required to electronically

file all documents and things that may be filed electronically, and who shall be responsible for

filing documents in compliance with the CMlECF Administrative Procedures. See Section 2B of

the CMlECF Administrative Procedures.


Case 1:10-cv-23968-UU Document 29 Entered on FLSD Docket 01/12/2011 Page 4 of 10

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LIDERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTA M. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-Intervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYN H. COLLINS;

EDWIN ENCISO; STEPHEN EASDALE;

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

) Case No.1 O-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CERTIFICATION OF MICHAEL B. DESANCTIS

I, Michael B. DeSanctis, Esquire, pursuant to Rule 4(b) of the Special Rules Governing

the Admission and Practice ofAttorneys, hereby certify that (1) I have studied the Local Rules of

the United States District Court for the Southern District ofFlorida; and (2) I am a member in

good standing ofthe Bars ofthe following jurisdictions: District ofColumbia (Bar No. 460961);

New Jersey (Bar No. 1009-1998); New York (Bar No. 2876803); Supreme Court of the United

States; the U.S. Courts of Appeals for the Second, Third, Fourth, Sixth, Ninth, Eleventh, and


Ca,se 1:10-cv-23968-UU Document 29 Entered on FLSD Docket 01/12/2011 Page 8 of 10

The Motion is GRANTED. Michael B. DeSanctis may appear and participate in this action on

behalf of proposed Defendant-Intervenors Leon W. Russell, Patricia T. Spencer, Carolyn H.

Collins, Edwin Enciso, Stephen Easdale, the Florida NAACP, and Democracia Ahora. The

Clerk shall provide electronic notification of all electronic filings to Michael B. DeSanctis at

mdesanctis@jenner.com.

DONE AND ORDERED m Chambers at , Florida, this day of

Copies furnished to:

All Counsel ofRecord (via electronicfiling)

United States District Judge


Case 1:10-cv-23968-UU Document 29 Entered on FLSD Docket 01/12/2011 Page 10 of 10

Original filename: n/a

Electronic document Stamp:

[STAMP dcecfStamp ID=1105629215 [Date=1/11/2011] [FileNumber=8376709-0]

[387aOba4baa601b09ca734007dcb9179231caf43c29821ff5ab2d3590d95b16f5cfa979373c63c95662dad413

80ea89f80c8627blb5c4dea4bcde4aa2cb9067d]]

Document description: Text of Proposed Order Original filename: n/a Electronic document

Stamp:

[STAMP dcecfStamp ID=1105629215 [Date=1/11/2011] [FileNumber=8376709-1]

[0ge34f5411e3382ccd4f8bOa4dOf933ea065fl0c375085605730d4e4ac9dcaa3707069fOc5f92fefcabecbfea

5b4d2f58ab3fab1875509acc659b19471ff8578]]

2


030


Case 1: 10-cv-23968-UU Document 30 Entered on FLSD Docket 01/12/2011 Page 2 of 10

the above-styled case only, and pursuant to Rule 2B of the CM/ECF Administrative Procedures,

to pennit Paul M. Smith to receive electronic filings in this case, and in support thereof states as

follows:

1. Paul M. Smith is not admitted to practice in the Southern District of Florida and is a

member in good standing of the Bars ofthe following jurisdictions: District of Columbia (Bar

No. 358870); Maryland (Bar No. 27182); New York (Bar No. 4372447); the Supreme Court of

the United States; the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, Tenth, Eleventh, District of Columbia, and Federal Circuits; the U.S.

District Court for the District of Columbia; the U.S. District Court for the District of Colorado;

the U.S. District Court for the Northern District ofIllinois; the U.S. District Court for the District

ofMaryland; and the U.S. District Court for the Southern District ofNew York.

2. Movant, Stephen F. Rosenthal, Esquire, of the law finn of Podhurst Orseck, P.A., 25

West Flagler Street, Suite 800, Miami, FL 33130, (305) 358-2800, is a member ofgood standing

of the Florida Bar and the United States District Court for the Southern District of Florida,

maintains an office in this State for the practice of law, and is authorized to file through the

Court's electronic filing system. Movant consents to be designated as a member of the Bar of

this Court with whom the Court and opposing counsel may readily communicate regarding the

conduct of the case, upon whom filings shall be served, who shall be required to electronically

file all documents and things that may be filed electronically, and who shall be responsible for

filing documents in compliance with the CM/ECF Administrative Procedures. See Section 2B of

the CM/ECF Administrative Procedures.

3. In accordance with the local rules ofthis Court, Paul M. Smith has made payment ofthis

Court's $75 admission fee. A certification in accordance with Rule 4(b) is attached hereto.


Case 1:10-cv-23968-UU Document 30 Entered on FLSD Docket 01/12/2011 Page 5 of 10

District Court for the Northern District of Illinois; the U.S. District Court for the District of

Maryland; and the U.S. District Court for the Southern District ofNew York.


Case 1:10-cv-23968-UU Document 30 Entered on FLSD Docket 01/12/2011 Page 8 of 10

Edwin Enciso, Stephen Easdale, the Florida NAACP, and Democracia Ahora. The Clerk shall

provide electronic notification ofall electronic filings to Paul M. Smith at psmith@jenner.com.

DONE AND ORDERED in Chambers at , Florida, this day of

Copies furnished to:

All Counsel ofRecord (via electronicfiling)

United States District Judge


Case 1:10-cv-23968-UU Document 30 Entered on FLSD Docket 01/12/2011 Page 10 of 10

Original filename: n/a

Electronic document Stamp:

[STAMP dcecfStamp 1D=1105629215 [Date=1/11/2011] [FileNumber=8376745-0]

[144012d6da9564371b512519393f87267838113bac4bd120fe447c5d9db4d3680b8ee8acB7b5c3f3add538662

1451gedf0017d7cdf26372e5404957149fc516a]l

Document description: Text of Proposed Order Original filename: n/a Electronic document

Stamp:

[STAMP dcecfStamp ID=1105629215 [Date=1/11/2011] [FileNumber=8376745-1]

[26908c6cecS098ca4baf3eOcf4120ceBcf2c8948a3bl074d2405b864a8742b121fc51eb9c22d1c4231de63c8b

915e5b4329bb711656d1d5216cl19fb4a2272bb]]

2


031


Case 1:10-cv-23968-UU Document 31 Entered on FLSD Docket 01/12/2011 Page 4 of 10

MARIO DIAZ-BALART and CORRINE

BROWN,

VS.

Plaintiffs,

STATE OF FLORIDA,

Defendant,

and

THE AMERICAN CIVIL LillERTIES UNION

OF FLORIDA; HOWARD SIMON;

BENETTAM. STANDLY, SUSAN

WATSON, and JOYCE HAMILTON HENRY,

Defendant-futervenors,

and

LEON W. RUSSELL; PATRICIA

T. SPENCER; CAROLYNH. COLLINS;

EDWIN ENCISO; STEPHEN EASDALE;

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; and DEMOCRACIA

AHORA

Defendant-futervenoTs

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

)

)

)

)

)

)

)

)

)

) Case No. 1O-CV-23968-UNGARO

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CERTIFICATION OF ERIC R. HAREN

I, Eric R. Haren, Esquire, pursuant to Rule 4(b) of the Special Rules Governing the

Admission and Practice ofAttorneys, hereby certify that (1) I have studied the Local Rules ofthe

United States District Court for the Southern District of Florida; and (2) I am a member in good

standing of the Bars of the following jurisdictions: California (Bar No. 250291); District of

Columbia (Bar No. 985189); the U.S. Courts ofAppeals for the Sixth and Federal Circuits; and

the United States Court ofFederal Claims.


Case 1:10-cv-23968-UU Document 31 Entered on FLSD Docket 01/12/2011 Page 5 of 10

Eric R. Haren


Case 1:10-cv-23968-UU Document 31 Entered on FLSD Docket 01/12/2011 Page 10 of 10

Original filename: n/a

Electronic document Stamp:

[STAMP dcecfStamp ID=l105529215 [Date=1/11/2011] [FileNurnber=8376567-0]

[8d734e3fd9d82bcdd2CI087ff3e48d4e1645c7bOaefaOb25cec3cfc25273fOflfcc44903e19d7a76f4da7b21a

4belclbeb5862435405af9bc67ddlOlcedOd99a]]

Document description: Text of Proposed Order Original filename: n/a Electronic document

Stamp:

[STAMP dcecfStamp ID=1l05629215 [Date=1/1l/2011] [FileNumber=8376567-1]

[406a58fc655e14eldlfOb87e7el16829bbabfce3873399bb9321d7edbld5d345e9cb29dfb39028ecl1099fe05

27e7a8a47ea33a38deOdc1555elbcffe930d320]]

2


032


033


Case 1:10-cv-23968-UU Document 33 Entered on FLSD Docket 01/14/2011 Page 2 of 7

is invalid. To protect its constitutionally provided discretion and authority, the Florida House of

Representatives seeks to participate in this lawsuit.

Memorandum ofLaw

Federal Rule ofCivil Procedure 24 provides for two types ofintervention: intervention as

a matter ofright, and permissive intervention. Loyd v. Alabama Dep 'to ofCorrections, 176 F.3d

1336, 1339 (11th Cir. 1999). The House is entitled to intervention as a matter ofright.

Alternatively, this Court should allow permissive intervention.

I. THE HOUSE MAY INTERVENE AS A MATTER OF RIGHT.

To intervene as a matter ofright, the moving party must demonstrate that: (1) its

application to intervene is timely; (2) it has an interest relating to the property or transaction

which is the subject ofthe action; (3) it is so situated that disposition ofthe action, as a practical

matter, may impede or impair its ability to protect that interest; and (4) its interest is represented

inadequately by the existing parties to the suit. Id. at 1339-40 (citing Chiles V. Thornburgh, 865

F.2d 1197, 1213 (11th Cir. 1989)). Ifa moving party satisfies these four requirements, the

district court must allow intervention. Chiles, 865 F.2d at 1213. The House satisfies each

requirement.

A. The Request to Intervene is Timelv.

This Motion is timely. "Timeliness is to be determined from all the circumstances. And

it is to be determined by the court in the exercise ofits sound discretion...." NAACP V. New

York, 413 U.S. 345, 366 (1973). This case is just beginning. The Defendant has just recently

responded to the operative complaint by filing its motion to dismiss. (Doc. 26.) The short time

between the initiation ofthis case and this Motion could not and will not prejudice any party. Cf

Diaz V. Southern Drilling Corp., 427 F.2d 1118, 1125-26 (5th Cir. 1970) (finding timely a

# 253310 v2 2


Case 1: 10-cv-23968-UU Document 33 Entered on FLSD Docket 01/14/2011 Page 3 of 7

motion to intervene filed more than one year after the action's commencement; even though

discovery had already been completed, intervention would not cause any delay or prejudice).

B. The House Has An Undeniable Interest in the Subject oftheAction.

Redistricting is a legislative function See League ofUnited Latin American Citizens v.

Perry, 548 U.S. 399, 415 (2006) ("[T]he legislative branch plays the primary role in

congressional redistricting ...."). The Florida Constitution vests the state's legislative power in

the House and the Senate. Art. III, sec. 1, Fla. Const. By restricting the legislative authority of

the House, the Amendment plainly impacts the House's interests.

C. The House Is So Situated That Disposition oftheAction May Impede or Impair

Its Ability to Protect Its Interest.

The House has a considerable interest in establishing the unconstitutionality ofthe

Amendment. Ifthis case proceeds without its involvement, that interest might be substantially

impeded or impaired. The precedential effect ofan adverse ruling could impair the House's

interests in future litigation, including litigation regarding the validity ofany forthcoming

redistricting plan. The potential for negative precedent "may supply that practical disadvantage

which warrants intervention as ofright." Chiles v. Thornburgh, 865 F.2d 1197, 1214 (lIth Cir.

1989). Under similar circumstances, the Eleventh Circuit granted intervention as a matter of

right:

Although the potential for negative stare decisis effects does not automatically

grant plaintiffs the right to intervene, the practical impairment the plaintiffs may

face here is significant. The plaintiffs are all alleging that the same First Union

policy violated the ADEA and led to their injury. Consequently, one court's

ruling on whether the bank's policy, as a matter of law, was in violation of the

ADEA could influence later suits. Although a district court would not be bound

to follow any other district court's determination, the decision would have

significant persuasive effects. We find that these effects are sufficiently

significant to warrant intervention.

Stone v. First Union Corp., 371 F.3d 1305, 1310 (lIth Cir. 2004).

#253310v2 3


Case 1:10-cv-23968-UU Document 33 Entered on FLSD Docket 01/14/2011 Page 4 of 7

D. The House's Interest May Not Be Sufficiently Aligned with the Plaintiffs' So As

to Ensure Adequate Representation.

Finally, because the House's and Plaintiffs' interests may not be sufficiently aligned,

Plaintiffs' prosecution ofthis case may not adequately protect the Legislature. The House does

not doubt Plaintiffs' ability to faithfully and diligently pursue this action, but Plaintiffs' interests

are considerably narrower than the Legislature's. Although Plaintiffs and the House share some

common interests, "[t]he requirement ofthe Rule is satisfied ifthe applicant shows that

representation ofhis interest 'may be' inadequate; and the burden ofmaking that showing should

be treated as minimal." Trbovich v. UMW, 404 U.S. 528, 538 n.l0 (1972) (emphasis added). It

is the Legislature-not Plaintiffs-which has the primary responsibility for redistricting. And it

is the Legislature-not Plaintiffs-whose prerogative will be challenged (and potentially

invalidated) under the Amendment.

* * *

For these reasons, the House satisfies the criteria for intervention as a matter ofright.

Furthermore, "[a]ny doubt concerning the propriety ofallowing intervention should be resolved

in favor ofthe proposed intervenors because it allows the court to resolve all related disputes in a

single action." Federal Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d

211,216 (11th Cir. 1993).

II. ALTERNATIVELY, THIS COURT SHOULD GRANT PERMISSIVE

INTERVENTION.

Ifthis Court denies intervention as a matter ofright, it should grant permissive

intervention. A district court may exercise its discretion to grant permissive intervention under

Rule 24(b)(2). Manasota-88, Inc. v. Tidwell, 896 F.2d 1318, 1323 (11th Cir. 1990). A party

seeking permissive intervention must show that: "(1) his application to intervene is timely; and

#2533IOv2 4


Case 1:10-cv-23968-U U Document 33 Entered on FLSD Docket 01/14/2011 Page 5 of 7

(2) his claim or defense and the main action have a question oflaw or fact in common." Chiles,

865 F.2d 1197, 1213 (lIth Cir. 1989). The House easily meets these criteria. See supra.

Separate standing is not required to intervene under Rule 24. Loyd v. Ala. Dep't ofCorr.,

176 F.3d 1336, 1339 (lIth Cir. 1999); Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512

(11th Cir. 1996). Nonetheless, the standing inquiry is helpful in determining whether a party

may intervene. Chiles, 865 F.2d at 1213. Specifically, where a party has standing, he likewise

has a significant interest in the case. Meek v. Metropolitan Dade County, 985 F.2d 1471, 1480

(11th Cir. 1993) ("In this circuit, a movant who shows standing is deemed to have a sufficiently

substantial interest to intervene."). The House would have standing to bring this action on its

own, because it is directly impacted and harmed by the Amendment. Cf Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561-62 (l992) (where challenger is "object of' the regulation, "there is

ordinarily little question that the action or inaction caused him injury, and that a judgment

preventing or requiring the action will redress it"). The Legislature and its processes are the

objects ofthe Amendment, so the House has standing to pursue this challenge.

Finally, intervention will not prejudice any party. Indeed, neither the Plaintiffs nor the

Defendant opposes it. Intervention will not lead to inefficiency or delay ofthe litigation. Cf,

Worlds v. Dep't ofHealth & Rehab. Servs., 929 F.2d 591,595 (11th Cir. 1991) (denying

permissive intervention after finding delay and inefficiency would result). Ifpermitted to

intervene, the House will work closely with Plaintiffs and their counsel to ensure there are no

delays or duplication ofefforts.

WHEREFORE, the Florida House ofRepresentatives respectfully requests entry ofan

order (i) granting it status as an intervening plaintiff, (ii) deeming filed the Proposed Complaint

# 253310 v2 5


Case 1: 10-cv-23968-UU Document 33 Entered on FLSD Docket 01/14/2011 Page 6 of 7

in Intervention, filed contemporaneously with this Motion, and (iii) granting the House such

further relief as this Court deems appropriate.

CERTIFICATE OF CONFERENCE

Pursuant to Local Rule 7.1 (a)(3), counsel for the House conferred with counsel for

Plaintiffs and Defendant. They do not oppose the proposed intervention.

Miguel De Grandy

Florida Bar No. 332331

800 Douglas Road, Suite 850

Coral Gables, Florida 33134

Telephone: 305-444-7737

Facsimile: 305-443-2616

Email: mad@degrandylaw.com

Respectfully submitted,

/s/ Allen Winsor.

George N. Meros, Jr.

Florida Bar No. 263321

Allen Winsor

Florida Bar No. 016295

GRAyRoBINSON, P.A.

Post Office Box 11189

Tallahassee, Florida 32302-1189

Telephone: 850/577-9090

Facsimile: 850/577-3311

gmeros@gray-robinson.com

awinsor@gray-robinson.com

Attorneysfor Proposed Intervenor, the

Florida House ofRepresentatives

CERTIFICATE OF SERVICE

I hereby certify that on January 14, 2011, I electronically filed the foregoing document with

the Clerk ofthe Court using CMlECF. I also certify that the foregoing document is being served

this day on all counsel ofrecord or pro se parties identified on the attached Service List in the

manner specified, either via transmission ofNotices ofElectronic Filing generated by CMlECF

or in some other authorized manner for those counselor parties who are not authorized to receive

electronically Notices ofElectronic Filing.

#253310v2 6

/s/ Allen Winsor

Allen Winsor

Florida Bar No. 016295


Case 1:10-cv-23968-UU Document 33 Entered on FLSD Docket 01/14/2011 Page 7 of 7

Service List

Diaz-Balart andBrown v. State ofFlorida

Case No. lO-CV-23968-UNGARO

United States District Court, Southern District ofFlorida

Service by CMIECFNotice

Stephen M. Cody

800 S Douglas Road, Suite 850

Coral Gables, FL 33134-2088

Tel: 305-416-3135 Fax: 305-416-3153

Email: stcody@stephencody.com

Attorney for Plaintiffs Diaz-Balart and Brown

Randall C. Marshall

American Civil Liberties Union

Foundation ofFlorida

4500 Biscayne Boulevard, Suite 340

Miami, FL 33137-3227

Tel: 786-363-2700 Fax: 786-363-1108

Email: rmarshall@aclufl.org

Attorney for Proposed Intervening Defendants,

ACLU, Simon, Henry, Watson, and Standly

Eric R. Haren

NUchaelB.DeSanctis

Paul M. Smith

Jenner & Block, LLP

1099 New York Avenue, NW

Washington, DC 20001

Tel: 202-639-6000

Email: eharen@jenner.com

mdesanctis@jenner.com

psmith@jenner.com

Attorney for Proposed Intervening Defendants

Russell, Spencer, Collins, Enciso, Easdale, Florida

State Conference ofNAACP Branches, and

Democracia Ahora

J. Gerald Hebert

191 Somervelle Street, #405

Alexandria, VA 22304

Tel: 703-628-4673 Fax: 567-5876

Email: GHebert@campaignlegalcenter.org

Attorney for Proposed Intervening Defendants

Russell, Spencer, Collins, Enciso, Easdale, Florida

State Conference ofNAACP Branches, and

Democracia Ahora

# 253310 v2 7

Jonathan A. Glogau

Attorney General's Office

Department ofLegal Affairs

The Capitol PL-O 1

Tallahassee, FL 32399-1050

Tel: 850-414-3300 Fax: 850-488-6589

Email: jon.glogau@myfloridalegal.com

Attorney for Defendant State ofFlorida

Moffatt Laughlin McDonald

American Civil Liberties Union

Foundation Inc

230 Peachtree StreetNW, Suite 1440

Atlanta, GA 30303-1227

Tel: 404-523-2721

Email: lmcdonald@aclu.org

Attorney for Proposed Intervening Defendants,

ACLU, Simon, Henry, Watson, and Standly

Stephen Frederick Rosenthal

Podhurst Orseck Josefsberg et al

City National Bank Building

25 W Flagler Street

Suite 800

Miami, FL 33130-1780

Tel: 305-358-2800 Fax: 305-358-2382

Email: srosenthal@podhurst.com

Attorney for Proposed Intervening Defendants

Russell, Spencer, Collins, Enciso, Easdale, Florida

State Conference ofNAACP Branches, and

Democracia Ahora


034


Case 1:10-cv-23968-UU Document 34 Entered on FLSD Docket 01/14/2011 Page 1 of 5

MARIO DIAZ-BALART and CORRINE

BROWN,

Plaintiffs,

- and-

THE FLORIDA HOUSE OF

REPRESENTATIVES,

v.

Proposed Intervening Plaintiff,

STATE OF FLORIDA,

Defendant.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

--------------_----:/

Case No.: 10-CV-23968-UNGARO

FLORIDA HOUSE OF REPRESENTATIVES' PROPOSED

COMPLAINT IN INTERVENTION FOR DECLARATORY RELIEF

Intervening Plaintiff, the Florida House ofRepresentatives (the "House"), files this

proposed Complaint in Intervention for Declaratory Relief.

Introduction

1. This action challenges the constitutionality ofa recently adopted provision ofthe

Florida Constitution: Article III, Section 20 (the "Amendment"). The House seeks a declaration

that the Amendment conflicts with, and therefore violates, the Elections Clause ofthe United

States Constitution. See U.S. Const. art. I, § 4, cl. 1.

2. Because the Amendment purports to abridge the plenary and exclusive authority

conferred on the Florida Legislature by the Elections Clause ofthe United States Constitution to

regulate the time, place, and manner ofconducting elections for Congress, it is unconstitutional.

# 253521 vI


Case 1: 10-cv-23968-UU Document 34 Entered on FLSD Docket 01/14/2011 Page 2 of 5

The Parties

3. Intervening Plaintiffis the Florida House ofRepresentatives, one oftwo houses of

the Florida Legislature, in which "[t]he legislative power ofthe state shall be vested." See Art.

III, sec. l, Fla. Const.

defendants.

4. Defendant is the State ofFlorida.

5. In addition, certain interest groups have moved to intervene as additional

Jurisdiction and Venue

6. This case involves a challenge based on the federal constitution. This Court has

subject-matter jurisdiction ofthis case pursuant to 28 U.S.c. § 1331. 1

7. This case is brought in Florida against the State ofFlorida; venue is proper.

8. The Court has authority to grant declaratory and prospective injunctive relief

pursuant to 28 U.S.C. §§ 2201(a) and 2202.

Claim for Relief- Count I

9. The allegations contained in Paragraphs 1 through 8 above are incorporated as

though restated here.

10. The Elections Clause authorizes state legislatures to regulate the time, place, and

manner ofholding congressional elections. It provides:

The Times, Places, and Manner of holding Elections for Senators and

Representatives, shall be prescribed in each State by the Legislature thereof; but

the Congress may at any time by Law make or alter such Regulations, except as to

the Places ofchusing Senators.

U.S. Const, art. I, § 4, cl. 1.

I The State ofFlorida has asserted Eleventh Amendment immunity as ajurisdictional defense.

(Doc. 26.) The House takes no position on this defense.

# 253521 vi 2


Case 1:10-cv-23968-UU Document 34 Entered on FLSD Docket 01/14/2011 Page 3 of 5

11. Pursuant to its authority under the Elections Clause to prescribe the manner of

holding elections for the United States House ofRepresentatives, the Florida Legislature enacts a

new congressional redistricting plan after each decennial census.

12. The discretion ofstate legislatures, in the performance ofthis federal function, is

not subject to constraint by state constitutional provisions. The discretionary power delegated by

the Elections Clause to the Legislature is plenary and exclusive, and cannot be limited or

circumscribed by the Florida Constitution.

13. By imposing state constitutional mandates on congressional redistricting, the

Amendment fetters the discretionary power vested by the Elections Clause in the Florida

Legislature, and it thus violates the United States Constitution.

14. This controversy is real and immediate. A prompt determination ofthe

constitutionality ofthe Amendment is essential to the Legislature's ability to lay the necessary

foundation for the adoption ofa congressional redistricting plan in 2012.

15. No remedy at law can redress the constitutional infirmity.

16. Accordingly, the House seeks and is entitled to a declaration that the Amendment

violates the Elections Clause ofthe United States Constitution.

# 253521 vi 3


Case 1:10-cv-23968-UU Document 34 Entered on FLSD Docket 01/14/2011 Page 4 of 5

WHEREFORE, the Florida House ofRepresentatives respectfully requests the Court to:

a. Declare the Amendment facially unconstitutional under the Elections Clause of

the United States Constitution; and

b. Grant such other relief as the Court may deem proper.

Dated this fourteenth day ofJanuary, 2011.

Miguel De Grandy

Florida Bar No. 332331

800 Douglas Road, Suite 850

Coral Gables, Florida 33134

Telephone: 305-444-7737

Facsimile: 305-443-2616

Email: mad@degrandylaw.com

Respectfully submitted,

/s/ Allen Winsor

George N. Meros, Jr.

Florida Bar No. 263321

Allen Winsor

Florida Bar No. 016295

GRAyRoBINSON, P.A.

Post Office Box 11189

Tallahassee, Florida 32302-1189

Telephone: 850/577-9090

Facsimile: 850/577-3311

gmeros@gray-robinson.com

awinsor@gray-robinson.com

Attorneysfor Proposed Intervenor, the

Florida House ofRepresentatives

CERTIFICATE OF SERVICE

I hereby certify that on January 14,2011, I electronically filed the foregoing document with

the Clerk ofthe Court using CMlECF. I also certify that the foregoing document is being served

this day on all counsel ofrecord or pro se parties identified on the attached Service List in the

manner specified, either via transmission ofNotices ofElectronic Filing generated by CMlECF

or in some other authorized manner for those counselor parties who are not authorized to receive

electronically Notices ofElectronic Filing.

# 253521 vi 4

/s/ Allen Winsor

Allen Winsor

Florida Bar No. 016295


Case 1:1 0-cv-23968-UU Document 34 Entered on FLSD Docket 01/14/2011 Page 5 of 5

Service List

Diaz-Balart and Brown v. State 0/Florida

Case No. lO-CV-23968-UNGARO

United States District Court, Southern District ofFlorida

Service by CMIECFNotice

Stephen M. Cody

800 S Douglas Road, Suite 850

Coral Gables, FL 33134-2088

Tel: 305-416-3135 Fax: 305-416-3153

Email: stcody@stephencody.com

Attorney for Plaintiffs Diaz-Balart and Brown

Randall C. Marshall

American Civil Liberties Union

Foundation ofFlorida

4500 Biscayne Boulevard, Suite 340

Miami, FL 33137-3227

Tel: 786-363-2700 Fax: 786-363-1108

Email: rmarshall@aclufl.org

Attorney for Proposed Intervening Defendants,

ACLU, Simon, Henry, Watson, and Stand1y

Eric R. Haren

Michael B. DeSanctis

Paul M. Smith

Jenner & Block, LLP

1099 New York Avenue, NW

Washington, DC 20001

Tel: 202-639-6000

Email: eharen@jenner.com

mdesanctis@jenner.com

psmith@jenner.com

Attorney for Proposed Intervening Defendants

Russell, Spencer, Collins, Enciso, Easdale, Florida

State Conference ofNAACP Branches, and

Democracia Ahora

J. Gerald Hebert

191 Somervelle Street, #405

Alexandria, VA 22304

Tel: 703-628-4673 Fax: 567-5876

Email: GHebert@campaign1egalcenter.org

Attorney for Proposed Intervening Defendants

Russell, Spencer, Collins, Enciso, Easdale, Florida

State Conference ofNAACP Branches, and

Democracia Ahora

#253521 vi 5

Jouathan A. Glogau

Attorney General's Office

Department ofLegal Affairs

The Capitol PL-O 1

Tallahassee, FL 32399-1050

Tel: 850-414-3300 Fax: 850-488-6589

Email: jon.g1ogau@myflorida1egal.com

Attorney for Defendant State ofFlorida

Moffatt Laughlin McDonald

American Civil Liberties Union

Foundation Inc

230 Peachtree StreetNW, Suite 1440

Atlanta, GA 30303-1227

Tel: 404-523-2721

Email: lmcdonald@aclu.org

Attorney for Proposed Intervening Defendants,

ACLU, Simon, Henry, Watson, and Standly

Stephen Frederick Rosenthal

Podhurst Orseck Josefsberg et al

City National Bank Building

25 W Flagler Street

Suite 800

Miami, FL 33130-1780

Tel: 305-358-2800 Fax: 305-358-2382

Email: srosentha1@podhurst.com

Attorney for Proposed Intervening Defendants

Russell, Spencer, Collins, Enciso, Easdale, Florida

State Conference ofNAACP Branches, and

Democracia Ahora


035


Case 1:10-cv-23968-U U Document 35 Entered on FLSD Docket 01/20/2011 Page 1 of 1

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

PLAINTIFFS' RESPONSE TO FLORIDA HOUSE OF

REPRESENTATIVES' MOTION TO INTERVENE

Plaintiffs Mario Diaz-Balart and Corrine Brown, by and through their undersigned counsel

respond in opposition to the motion to intervene filed The Florida House ofRepresentatives by saying

that they do not object to the intervention in light ofthe fact that House will be called upon to implement

the amendment to the Florida Constitution at issue in this case. .

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 28,2010, I electronically filed the foregoing document

with the Clerk ofthe Court using CM/ECF.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

s/Stephen M. Cody

Fla. Bar No. 334685


036


Case 1:10-cv-23968-UU Document 36 Entered on FLSD Docket 01/20/2011 Page 1 of 2

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendants.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

AGREED MOTION FOR LEAVE TO FILE SECOND AMENDED

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

AND MOTION TO EXTEND TIME TO COMPLY WITH THE

COURT'S SCHEDULING ORDER

Plaintiffs MARIO DIAZ-BALART and CORRINE BROWN, by and through their undersigned

counsel, move this Court for leave to file a Second Amended Complaint, and as grounds therefore would

show:

1. Plaintiffs brought this action seeking a declaratory judgment that Article III, Section 20

ofthe Florida Constitution is unconstitutional as well as injunctive reliefprohibiting the enforcement of

Article III, Section 20 ofthe Florida Constitution.

2. In their amended complaint, Plaintiffs named the State ofFlorida as a party defendant.

3. The State's claim ofsovereign immunity under the Eleventh Amendment is well taken

and requires that individuals be sued in their official capacity, rather than the State ofFlorida being

named as a party.

4. The proposed Second Amended Complaint is attached hereto. The State is being dropped

as a formal party defendant and Govenor Rick Scott and Secretary ofState Kurt S. Browning are being

added as part defendants.


Case 1:10-cv-23968-UU Document 36 Entered on FLSD Docket 01/20/2011 Page 2 of 2

5. The undersigned has consulted with the Office ofthe Attorney General ofthe State of

Florida and they have agreed to the entry ofthe reliefrequested. At present, no other parties have

successfully intervened as parties in this matter, either as Plaintiffs or as Defendants.

6. Because the Second Amended Complaint must be served upon Governor Scott and

Secretary Browing, the undersigned also requests that the Court reset the deadlines for filing of

scheduling order in order to give time for service ofprocess to be affected.

WHEREFORE, the Plaintiffs request leave from the Court to file the attached Second Amended

Complaint and that the Court reset the scheduling deadlines in this case to permit service ofprocess of

the new pleading upon the Governor and the Secretary ofState.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

LOCAL RULE 7,l.A,3 CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the undersigned counsel conferred with opposing counsel via phone on January 19,

2011. The parties were able to agree to the reliefsought herein.

sl Stephen M. Cody

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 20, 2011, I electronically filed the foregoing document

with the Clerk ofthe Court using CM/ECF.

sl Stephen M. Cody

?


Case 1: 10-cv-23968-UU Document 36-1 Entered on FLSD Docket 01/20/2011 Page 1 of 7

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

RICK SCOTT, in his official capacity as

Governor ofthe State ofFlorida, and KURT S.

BROWNING, in his official capacity as

Secretary ofState ofFlorida,

Defendants.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs MARIO DIAZ-BALART and CORRINE BROWN, by and through their undersigned

counsel, sue Defendants. RICK SCOTT, in his official capacity as Governor ofthe State ofFlorida, and

KURT S. BROWNING, in his official capacity as Secretary ofState ofFlorida, and as grounds therefore

would show:

1. Plaintiffs bring this action seeking a declaratory judgment that Article III, Section 20 of

the Florida Constitution is unconstitutional as well as injunctive reliefprohibiting the enforcement of

Article III, Section 20 ofthe Florida Constitution.

2. This case is an action for declaratory and injunctive reliefpursuant to 28 U.S.c. §§ 2201-

2202 and Federal Rule ofCivil Procedure 57.


Case 1:10-cv-23968-UU Document 36-1 Entered on FLSD Docket 01/20/2011 Page 2 of 7

PARTIES

3. Defendant RICK SCOTT is the Governor ofthe State ofFlorida and is sued in his official

capacity as Governor. In his capacity as Governor, Defendant Scott is the ehiefexecutive ofthe State

and is responsible for the faithful execution ofthe laws ofFlorida, including the Florida Constitution.

4. Defendant KURT S. BROWNING is the Secretary ofState ofthe State ofFlorida and is

sued in his official capacity as Secretary. In his capacity as Secretary, Defendant Browning is the chief

elections officer ofthe State.

5. PlaintiffMARIO DIAZ-BALART is a citizen ofthe State ofFlorida and is a resident of

and registered to vote in Miami-Dade County. Since 2003, Diaz-Balart has represented the citizens of

Congressional District 25 in the United States House ofRepresentatives. Hispanics comprise more than

50 percent ofthe voting-age population in Congressional District 25. In January 2011, PlaintiffDiaz­

Balart will be representing the residents ofFlorida District 21. Hispanics comprise more than 50 percent

ofthe voting-age population in Congressional District 21. PlaintiffDiaz-Balart is a member ofa

protected language minority under the Voting Rights Act of 1965, as amended. PlaintiffDiaz-Balart

intends to run for Congress in 2012.

6. PlaintiffCORRlNE BROWN is a citizen ofthe State ofFlorida and is a resident ofand

registered to vote in Duval County. Since 1993, Brown has represented the citizens ofCongressional

District 3 in the United States House ofRepresentatives. African-Americans comprise nearly halfofthe

voting-age population in Congressional District 3. PlaintiffBrown is a member ofa protected racial

minority under the Voting Rights Act of 1965, as amended. PlaintiffBrown intends to run for Congress

in 2012.

7


Case 1:10-cv-23968-UU Document 36-1 Entered on FLSD Docket 01/20/2011 Page 3 of 7

JURISDICTION AND VENUE

7. The Court has subject-matter jurisdiction over this action under 28 U.S.c. §§ 1331 and

1346(a)(2) because it arises under the Constitution and laws ofthe United States.

8. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2), because no real

property is involved in this action and the State ofFlorida is situated in this judicial district.

FACTS

9. On September 28,2007, the Florida Department ofState, Division ofElections, approved

an initiative petition prepared by FairDistrictsFlorida.org for circulation that establishes new criteria for

Congressional redistricting. The Congressional Petition obtained the necessary number ofsignatures

and was certified for placement on the November 2010 general election ballot as Amendment 6.

10. At the general election held in Florida on November 2,2010, Amendment 6 was

approved by more than 60 percent ofthe voters casting ballots on the question.

11. Upon its receipt ofmore than 60 percent ofthe votes cast, Amendment 6 became Article

III, section 20 ofthe Florida Constitution, which presently provides:

Section 20. STANDARDS FOR ESTABLISHING CONGRESSIONAL

DISTRICT BOUNDARIES

In establishing Congressional district boundaries:

(1) No apportionment plan or individual district shall be drawn with the

intent to favor or disfavor a political party or an incumbent; and districts

shall not be drawn with the intent or result ofdenying or abridging the

equal opportunity ofracial or language minorities to participate in the

political process or to diminish their ability to elect representatives oftheir

choice; and districts shall consist ofcontiguous territory.

(2) Unless compliance with the standards in this subsection conflicts with

the standards in subsection (1) or with federal law, districts shall be as

nearly equal in population as is practicable; districts shall be compact; and

districts shall, where feasible, utilize existing political and geographical

boundaries.


Case 1:10-cv-23968-UU Document 36-1 Entered on FLSD Docket 01/20/2011 Page 4 of 7

(3) The order in which the standards within sub-sections (1) and (2) of

this section are set forth shall not be read to establish any priority ofone

standard over the other within that subsection.

See, Adv. Gp. to Att'y Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d 175

(Fla. 2009) for the text ofthe language ofAmendment 6.

12. There is an actual controversy ofsufficient immediacy and concreteness relating to the

legal rights and duties ofthe Legislature in drawing Congressional districts to warrant reliefunder 28

U.S.C. § 2201.

13. The harm to the citizens and voters in the State ofFlorida, including Plaintiffs, is

sufficiently real and/or imminent to warrant the issuance ofa conclusive declaratory judgment usefully

clarifying the legal relations ofthe parties.

14. Plaintiffs have retained the undersigned counsel and have agreed to pay him a reasonable

fee for his services.

herein.

COUNT I - VIOLATION OF THE SUPREMACY AND DUE PROCESS CLAUSES

OF THE UNITED STATES CONSTITUTION

15. Plaintiffs repeat and realleges the allegations ofparagraphs 1 through 14 as ifset forth

16. The Supremacy Clause ofthe Constitution mandates that "[t]his Constitution, and the

Laws ofthe United States which shall be made in Pursuance thereof... shall be the supreme Law ofthe

Land ... any Thing in the Constitution or Laws ofany State to the Contrary notwithstanding." U.S.

Const., art. VI, cl. 2.

17. The first clause ofthe Fourteenth Amendment to the United States Constitution provides:

Section. 1. All persons born or naturalized in the United States and subject

to the jurisdiction thereof, are citizens ofthe United States and ofthe State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities ofcitizens ofthe United States; nor

shall any State deprive any person oflife, liberty, orproperty, without due

4


Case 1:1 0-cv-23968-UU Document 36-1 Entered on FLSD Docket 01/20/2011 Page 5 of 7

Emphasis supplied.

process oflaw; nor deny to any person within its jurisdiction the equal

protection ofthe laws.

18. The United States Constitution delegates the task ofsetting the time, place, and manner

ofsetting Congressional elections to the Legislatures ofeach ofthe several States.

19. Article I, Section 4, Clause 1 specifically provides:

The Times, Places and Manner ofholding Elections for Senators and

Representatives, shall be prescribed in each State by the Legislature

thereof; but the Congress may at any time by Law make or alter such

Regulations, except as to the Places ofchusing [sic] Senators.

20. The authority to draw Congressional Districts falls within the ambit of"time, place and

manner" authority found in Article I, Section 4, Clause 1. See Vieth v. Jubelirer, 541 U.S. 267, 275

(2004) (plurality opinion) ("Article I, § 4, while leaving in state legislatures the initial power to draw

districts for federal elections, permitted Congress to 'make or alter' those districts ifit wished.")

21. Congress has exercised the authority reserved to in Article I, Section 4, Clause 1. In The

Apportionment Act of 1842,5 Stat. 491, Congress provided that Representatives must be elected from

single-member districts "composed ofcontiguous territory." Congress again imposed these requirements

in The Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts "contai[n] as

nearly as practicable an equal number ofinhabitants," 17 Stat. 28, § 2. In The Apportionment Act of

1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements ofcontiguity,

compactness, and equality ofpopulation were repeated in the 1911 apportionment legislation, 37 Stat.

13, but were not thereafter continued. Today, only the single member-district requirement remains. See

2 U. S. C. § 2c.

22. Article III, Section 20 ofthe Florida Constitution represents an impermissible effort by

Florida to limit the discretion directly delegated by the United States Constitution to the Florida

Legislature.


Case 1: 10-cv-23968-UU Document 36-1 Entered on FLSD Docket 01/20/2011 Page 6 of 7

23. Under Article 1, Section 4, Clause 1, the discretion to set the time, place, and manner of

holding Congressional elections belongs to the Florida Legislature. That discretion may only be limited

or circumscribed by the Congress and not by way ofan amendment to the Florida Constitution.

24. Article III, Section 20 may not immediately and unconditionally be enforced unless and

until Congress authorizes circumscription ofthe Florida Legislature's power to set the time, place and

manner ofCongressional elections, including drawing districts.

25. Accordingly, Article III, Section 20 ofthe Florida Constitution violates the Supremacy

Clause and is invalid.

1983.

26. A violation ofthe United States Constitution may be challenged pursuant to 42 U.S.C. §

COUNT II - PREEMPTION UNDER FEDERAL LAW

27. Plaintiffs repeat and reallege the allegations ofparagraphs 1 through 14 and 16 through

26 as ifset forth herein.

28. Article III, Section 20 ofthe Florida Constitution is preempted by Article I, Section 4,

Clause 1 ofthe United States Constitution.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court:

A. Enter an order declaring that Article III, Section 20 ofthe Florida Constitution is

unconstitutional on its face as an attempt to circumscribe the Constitutional discretion that devolves

from Article I, Section 4, Clause 1 ofthe United States Constitution to the Florida Legislature to set the

time, place, and manner ofCongressional elections, including the drawing ofCongressional districts,

and that it is in direct contravention ofthe Supremacy Clause and the Due Process Clauses ofthe Fifth

and Fourteenth Amendments to the United States Constitution;


Case 1:10-cv-23968-UU Document 36-1 Entered on FLSD Docket 01/20/2011 Page 7 of 7

B. Enter an order declaring that Article III, Section 20 ofthe Florida Constitution is

preempted by Article I, Section 4, Clause 1 ofthe United States Constitution;

C. Enjoin Defendants and any other agency or official acting on behalfofDefendants from

enforcing Article III, Section 20 ofthe Florida Constitution;

D. Award Plaintiffs reasonable attorney's fees and costs pursuant to 42 U.S.C. § 1988 by

and through 42 U.S.c. § 1983 and 28 U.S.C. § 1343; and

E. Grant such other relief as the Court deems just and proper.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

sl Stephen M. Cody

CERTIFICATE OF SERVICE

Fla. Bar No. 334685

I HEREBY CERTIFY that on January 20,2011, I electronically filed the foregoing document

with the Clerk ofthe Court using CM/ECF.

sl Stephen M. Cody

7


037


Case 1:10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 1 of 9

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA,

Defendant.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE BY

LEON W. RUSSELL, PATRICIA T. SPENCER, CAROLYN H.

COLLINS, EDWIN ENCISO, STEPHEN EASDALE, and FLORIDA

STATE CONFERENCE OF NAACP BRANCHES

Plaintiffs Mario Diaz-Balart and Corrine Brown, by and through their undersigned counsel

respond in opposition to the motion to intervene filed by Leon W. Russell, Patricia T. Spencer, Carolyn

H. Collins, Edwin Enciso, Stephen Easdale, and the Florida State Conference OfNAACP Branches.

[DE 19]

Background

Plaintiffs have brought this action seeking a declaratory judgment that Article III, Section 20 of

the Florida Constitution is unconstitutional as well as injunctive reliefprohibiting the enforcement of

Article III, Section 20 ofthe Florida Constitution. Leon W. Russell, Patricia T. Spencer, Carolyn H.

Collins, Edwin Enciso, Stephen Easdale, and the Florida State Conference OfNAACP Branches have

moved to intervene in this action pursuant to either Rule 24(a)(2) or Rules 24(b)(1)(B). Like the motion

to intervene filed by the Florida chapter ofthe American Civil Liberties Union and some ofits members

[DE 11], the instant motion to intervene alleges that the individual intervenors are Florida registered


Case 1:10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 2 of 9

voters and are members ofthe NAACP. Just like the ACLU and its members, these Intervenors do not

trust the State ofFlorida, to defend the action to their liking. l

Argument

I. The Motion to Intervene Under Rule 24(a)(2) Should Be Denied

This action seeks a declaration that the newly enacted amendment found in Article III, Section

20 ofthe Florida Constitution impermissibly conflicts with Article I, Section 4 ofthe United States

Constitution. Like the ACLU Intervenors, the NAACP Intervenors move on the basis that they have an

"interest" in the instant litigation, which is sufficient to grant them standing as party defendants. As

discussed in the response to the ACLU's motion, the courts have recognized a great difference between

a proposed intervenor being "interested in" a case and having "an interest" in the matter. The former

may support intervention, while the latter will not.

Rule 24 ofthe Federal Rules ofCivil Procedure contemplates two distinct species of

intervention: intervention ofright, under Rule 24(a), and permissive intervention under Rule 24(b). The

Intervenors here seek to enter this case under either avenue. The intervention should be denied.

Rule 24(a)(2) provides:

On timely motion, the court must permit anyone to intervene who: &

(2) claims an interest relating to the property or transaction that is the

subject ofthe action, and is so situated that disposing ofthe action may as

a practical matter impair or impede the movant's ability to protect its

interest, unless existing parties adequately represent that interest.

Rule 24(a)(2), Fed.R.Civ.P. (emphasis supplied). The Eleventh Circuit has adopted the well-recognized

four-step analysis ofintervention under Rule 24(a)(2):

1 The Court had granted the State ofFlorida an extension oftime to respond to the Amended Complaint

through January 11, 2011. Pam Bondi, the new Florida Attorney General, responded to the Amended

Complaint with a motion to dismiss raising grounds under the Eleventh Amendment. The objection was

well taken and a motion for leave to file a Second Amended Complaint has been filed which will

substitute Governor Rick Scott and Secretary ofState ofFlorida, Kurt S. Browning, into the matter as

party defendants. The agreed motion is presently pending before the Court.

2


Case 1: 10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 3 of 9

Federal Rule ofCivil Procedure 24(a) & "set bounds that must be

observed. The original parties have an interest in the prompt disposition of

their controversy and the public also has an interest in efficient disposition

ofcourt business." 7C Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 1904, at 270 (3d ed. 2007). To

intervene ofright under Rule 24(a)(2), a party must establish that "(l) his

application to intervene is timely; (2) he has an interest relating to the

property or transaction which is the subject ofthe action; (3) he is so

situated that disposition ofthe action, as a practical matter, may impede or

impair his ability to protect that interest; and (4) his interest is represented

inadequately by the existing parties to the suit." Chiles v. Thornburgh, 865

F.2d 1197, 1213 (lith Cir. 1989) (citing Athens Lumber Co. v. FEC, 690

F.2d 1364, 1366 (lith Cir. 1982)).

Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302-03 (lith Cir. 2008); accord Stone v. First Union Corp.,

371 F.3d 1305, 1308-09 (lith Cir. 2004). Because the Intervenors must meet all four parts ofthis test,

failure to satisfy anyone ofthe criteria justifies denial ofits motion.

Ofthe four criteria set out in Tyson Foods, the NAACP Intervenors can only satisfy the first.

Plaintiffs concede that the motion to intervene is timely. However, the Plaintiffs dispute the

Intervenors' claims that they satisfy the remaining three.

The NAACP Intervenors cannot demonstrate a sufficient interest relating "to the property or

transaction which is the subject ofthe action" in order to satisfy the second Tyson Foods criteria. Unlike

a case where intervention is sought pursuant to Rule 24(a)(1), where party has a right to intervene set

forth in federal law, a party seeking to intervene under Rule 24(a)(2) must establish a right ofstanding

ofhis or her own.

The NAACP Intervenors' motion should be denied because they lack a "significant protectable

interest" that may be practically impaired or impeded by the disposition ofthis case. Donaldson v.

United States, 400 U.S. 517, 531 (1971). "[A]n undifferentiated, generalized interest in the outcome of

an ongoing action" is insufficient. S. Cal. Edison Co. v. Lynch, 307 F.3d 794,803 (9th Cir. 2002)

(internal quotation marks omitted). Rather, "at some fundamental level the proposed intervenor must

3


Case 1:10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 4 of 9

have a stake in the litigation." Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941,946 (7th Cir. 2000)

(internal quotation marks and brackets omitted).

The NAACP claims that it has an interest in this litigation because it has appeared as a party in

other cases that have touched upon the right to vote. Unlike the reapportionment cases cited, there is no

local perspective to be shared when it comes to issues ofconstitutionality. The NAACP and its

members may offer insight when evaluating a reapportionment plan and whether, for instance, it splits

compact and cohesive minority communities. However, whether a given state constitutional provision

violates the United States Constitution does not depend on the viewpoint ofany party or intervenor.

Respectfully, on the issue ofwhether the newly enacted Article III, section 20 violates Article I, section

4 ofthe United States Constitution, the opinion and input ofthe NAACP Intervenors is indistinguishable

from the thoughts ofany other voter in the State.

A party has standing within the meaning ofArticle III when it establishes three elements: (1)

injury, (2) causation, and (3) redressability. Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61. The

injury must be an injury in fact, i.e., the invasion ofa legally protected interest that is concrete and

particularized, not conjectural or hypothetical. Id. at 560. "Moreover, there must be some causal

connection between the asserted injury and the challenged action, and the injury must be ofthe type

likely to be redressed by a favorable decision." Gutherman v. 7-Eleven, Inc., 278 F.Supp.2d 1374, 1378

(S.D. Fla. 2003) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)). These three

requirements have been described as "immutable," and as the "irreducible constitutional minimum" of

standing under the "case or controversy" clause, Bennett v. Spear, 520 U.S. 154, 162 (1997), and

Defenders ofWildlife, 504 U.S. at 560-61.

It "is not enough that an organization alleges that a particular party's conduct is against the

policies or goals ofthat organization. It is precisely this type ofbroad organizational interest which the

4


Case 1:10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 5 of 9

Supreme Court rejected in Sierra Club v. Morton, 405 U.S. 727 (1972), since it is too abstract to

represent a meaningful basis for standing." Williams v. Adams, 625 F.Supp. 256,260 (N.D. Ill. 1985).

Under Sierra Club, ACLU-FL's interest in the amendment at issue is too abstract. The only inference to

drawn from the facts plead by the Intervenors is that ACLU-FL has no other stated purpose than to act

as a vehicle for litigation. However, the propensity ofan organization to file lawsuits, standing alone,

does not anoint it with the status ofone who has been injured in fact. In Fair Housing Council of

Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998), the Third Circuit held

"that the pursuit oflitigation alone cannot constitute an injury sufficient to establish standing under

Article III." Id. at 80. To find otherwise, any litigant could create injury in fact by bringing a case, and

Article III would present no real limitation. Spann v. Colonial Village, Inc., 899 F.2d 24,27 (D.C.Cir.

1990). What ACLU-FL seeks to assert in this case is an "abstract social interest" not cognizable as a

protectable interest under Article III. See, Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

The tenor ofIntervenors' primary argument - that, as initiative supporters, they have a quasi­

legislative interest in defending the measure they successfully advocated - must be rejected because

they are not elected state officials or authorized by state law to represent the State's interests. In Karcher

v. May, 484 U.S. 72, 82 (1987), the Supreme Court noted that applications ofthe Speaker ofthe General

Assembly and the President ofthe Senate to intervene as parties-respondent on behalfofthe legislature

in defense ofa legislative enactment was proper where New Jersey law empowered the state's

legislature to defend the constitutionality ofstate enactments. However, the Supreme Court has never

identified initiative proponents or supporters as Article III qualified defendants. In The Don't Bankrupt

Washington Committee v. Continental Illinois National Bank & Trust Co., 460 U.S. 1077 (1983)

(mem.), the Supreme Court held that an initiative proponent lacked standing to bring an appeal. The

Don't Bankrupt Washington Committee was the proponent ofa Washington state initiative. Continental

5


Case 1:10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 6 of 9

Ill. Nat'I Bank & Trust Co. v. Washington, 696 F.2d 692,694 (9th Cir. 1983). On a challenge to the

initiative by the federal government, in which the Committee was permitted to intervene, the Ninth

Circuit invalidated the initiative. Id. at 694, 702. The Committee appealed to the Supreme Court, but the

Court dismissed the appeal because the Committee lacked standing, notwithstanding the fact that it had

intervened in the case below?

Here, both the Amended Complaint and the proposed Second Amended Complaint allege that

the new provisions found in Article III, Section 20 ofthe Florida Constitution conflict with Article I,

Section 4 and the Supremacy Clause ofthe United States Constitution. At its most primal level, the

Intervenors cannot be found to have a vital interest in ensuring that a portion ofstate law that impinges

upon duties that devolve directly from the United States Constitution to the Florida Legislature remain

in effect, in spite ofthe command ofthe Supremacy Clause. If, as the Plaintiffs allege, the new

amendment violates the federal Constitution, then it must give way, regardless ofhow many voters

approved it or how fervently eitherthe ACLU or the NAACP Intervenors advocated its passage. Their

enthusiasm for the new measure and their desire to see that it remain in place when the Legislature takes

up redistricting commencing in the spring of2011 does not vest them with standing and the requisite

interest to be a party defendant in this action.

Moreover, the State's successful assertion ofthe Eleventh Amendment in its motion to dismiss

should be taken as proofthat the State will adequately represent their interests. The Eleventh Circuit has

stated that courts should "presume adequate representation when an existing party seeks the same

objectives as the would-be interveners." Clark v. Putnam County, 168 F.3d 458,461 (11th Cir. 1999).

Although this presumption is "weak," it imposes on the proposed intervener "the burden ofcoming

2 That dismissal was a decision on the merits that is binding on lower courts on the issues presented and

necessarily decided. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).

6


Case 1: 10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 7 of 9

forward with some evidence to the contrary." /d. (emphasis added). Here, the NAACP Intervenors have

failed to make any factual showing.

Accordingly, the Intervenor's motion to intervene as a matter ofright must be denied.

II. The Motion to Intervene Under Rule 24(b) Should Also Be Denied

As an alternative to intervention as a matter ofright, the Intervenors request that they be granted

leave to enter the case under Rule 24(b). Rule 24(b) provides:

(b) Permissive Intervention.

(l) In General.

On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a

common question oflaw or fact.

The Eleventh Circuit in In re Ford Motor Co., 471 F.3d 1233, 1246 (lIth Cir., 2006) noted:

Ifa nonparty lacks the right to intervene, Rule 24(b) allows the court to

grant it permission to do so "when a statute ofthe United States confers a

conditional right to intervene," or "when [the] applicant's claim or defense

and the main action have a question oflaw or fact in common."

Fed.R.Civ.P. 24(b); see also Chiles [v. Thornburgh, 865 F.2d 1197 (lIth

Cir.1989)] at 1213. "[I]t is wholly discretionary with the court whether to

allow intervention under Rule 24(b) and even though there is a common

question oflaw or fact, or the requirements ofRule 24(b) are otherwise

satisfied, the court may refuse to allow intervention." Worlds v. Dep't of

Health andRehabilitative Servs., 929 F.2d 591,595 (lIth Cir.1991)

(quoting 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure, § 1913, at 376-77 (2d ed.1986)).

In the instant case, the proposed answer offered by the Intervenors shows that they offer nothing

unique to the case. The Intervenors admit some ofthe facts alleged in the Amended Complaint and

deny others. They assert five affirmative defenses. The first, sovereign immunity, is a defense personal

7


Case 1: 10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 8 of 9

to the State ofFlorida and may not be asserted by these parties. 3 The second defense, that the State of

Florida is not a proper party, is also a defense that belongs to the State and cannot be raised by these

Intervenors. The third defense, that the Amended Complaint fails to state a cause ofaction, is a generic

defense that does not need the presence ofthe Intervenors to be evaluated by the Court. The fourth

defense is that the claim is unripe. (The defense fails to allege any factual basis for this lack of

ripeness.). Finally, the fifth defense is that the Plaintiffs lack standing. The first three defenses were

copied verbatim from the proposed answer ofthe ACLD. The last two defenses were utterances of

boilerplate.

In short, the Intervenors bring nothing ofsubstance to the case. The fact that they are merely

"interested in" the outcome ofthis case does not give them standing to participate in this matter. The

Amended Complaint seeks declaratory and injunctive reliefagainst the State ofFlorida. Whether that

reliefis granted or denied, the decision ofthe Court will not affect the Intervenors to a greater degree

than the millions ofvoters who cast ballots in the November 2010 election either in support or

opposition to the amendment in question. The Intervenors's desire to affect the outcome ofthis case or,

at the very least, to have their voices heard does not create a "defense that shares with the main action a

common question oflaw or fact" as contemplated by Rule 24(b).

"[B]ecause an intervenor participates on equal footing with the original parties to a suit, a

movant for leave to intervene ... must satisfy the same Article III standing requirements as original

parties." Building and Constr. Trades Dept., AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir.1994)

(citations omitted). As the Eighth Circuit held:

[A]n Article III case or controversy, once joined by intervenors who lack

standing, is - put bluntly - no longer an Article III case or controversy. An

Article III case or controversy is one where all parties have standing, and a

3 As discussed previously, the Plaintiffs have moved for leave to file a Second Amended Complaint

which does not name the State as a defendant.

8


Case 1:10-cv-23968-UU Document 37 Entered on FLSD Docket 01/20/2011 Page 9 of 9

would-be intervenor, because he seeks to participate as a party must have

standing as well. The Supreme Court has made it very clear that "[those]

who do not possess Art. III standing may not litigate as suitors in the

courts ofthe United States."

Mausolfv. Babbit, 85 F.3d 1295, 1300 (8th Cir.).

The best gloss that can be put on the Intervenors' motion is that are interested bystanders.

However, no matter how hard they press their case, they cannot demonstrate that they have a interest

which is any different from the millions ofvoters who voted for the measure or the thousands who

actively campaigned for it and urged their friends and neighbors to support it. In the end, the

Intervenors should be left where they are, on the sidelines, free to observe this case, but not free to

participate as an equal party.

Conclusion

Plaintiffs respectfully request that the Court deny the motion to intervene filed by Leon W.

Russell, Patricia T. Spencer, Carolyn H. Collins, Edwin Enciso, Stephen Easdale, and the Florida State

Conference OfNAACP Branches.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753-2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

s/Stephen M. Cody

CERTIFICATE OF SERVICE

Fla. Bar No. 334685

I HEREBY CERTIFY that on January 20, 2011, I electronically filed the foregoing document

with the Clerk ofthe Court using CM/ECF.

9

s/Stephen M. Cody


038


Case 1: 10-cv-23968-UU Document 38 Entered on FLSD Docket 01/31/2011 Page 1 of 2

MARIO DIAZ-BALART and

CORRINE BROWN

v.

Plaintiff,

STATE OF FLORIDA,

Defendant.

-------------------'/

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 10-23968-UNGARO

ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' MOTION FOR

LEAVE TO FILE SECOND AMENDED COMPLAINT.

THIS CAUSE is before the Court upon Defendant's Motion to Dismiss (D.E. 26) and

Plaintiffs' Agreed Motion for Leave to File Second Amended Complaint (D.E. 36).

THE COURT has considered the Motions, the pertinent portions ofthe record, and is

otherwise fully advised in the premises. Defendant moves to dismiss Plaintiffs' First Amended

Complaint. Plaintiffs move for leave to file a Second Amended Complaint adding Governor Rick

Scott and Secretary ofState Kurt S. Browning as defendants. Plaintiffs also request that the Court

reset the scheduling deadlines to allow for the Second Amended Complaint to be served upon the

new defendants. It is hereby

ORDERED AND ADmDGED that the Motion for Leave to File Second Amended

Complaint (D.E. 36) is GRANTED. The Second Amended Complaint SHALL be deemed filed as of

the below signature date. It is further

ORDERED AND ADmDGED that the Motion to Dismiss (D.E. 26) is DENIED AS MOOT.

The Court will separately enter an order re-setting the relevant scheduling deadlines.

DONE AND ORDERED in Chambers, in Miami, Florida this 31st day ofJanuary, 2011.


Case 1: 10-cv-23968-U U Document 38 Entered on FLSD Docket 01/31/2011 Page 2 of 2

cc: counsel ofrecord

URSULA UNGARO (J

UNITED STATES DISTRICT JUDGE


··039


040


Case 1:10-cv-23968-UU Document 40 Entered on FLSD Docket 01/31/2011 Page 1 of 1

MARIO DIAZ-BALART and

CORRINE BROWN

v.

Plaintiff,

STATE OF FLORIDA,

Defendant.

--------------_./

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

ORDER TO SHOW CAUSE

Case No.: IO-23968-UNGARO

THIS CAUSE came before the Court upon a sua sponte review ofthe record.

THE COURT has considered the pertinent portions ofthe record and is otherwise fully

advised in the premises. It is hereby

ORDERED AND ADJUDGED that Plaintiffs SHALL show cause in writing, not to

exceed five pages, on or before February 11, 2011, why this Court has subject jurisdiction over

this case. Failure to comply with this Order will result in dismissal without further notice.

2011.

DONE AND ORDERED in Chambers at Miami, Florida, this _31st_ day ofJanuary,

copies provided to: Counsel ofRecord

UNITED STATES DISTRICT JUDGE


041


Case 1:10-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 1 of 13

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

STATE OF FLORIDA, RICK SCOTT, and

KURT BROWNING,

Defendants,

and

Defendant-Intervenors,

and

FLORIDA STATE CONFERENCE OF

NAACP BRANCHES; DEMOCRACIA

AHORA; LEON W. RUSSELL;

PATRICIA T. SPENCER; CAROLYN H.

COLLINS; EDWIN ENCISO; and

STEPHEN EASDALE,

Defendant-Intervenors.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

THE AMERICAN CIVIL LIBERTIES )

UNION OF FLORIDA; HOWARD SIMON; )

BENETTAM.STANDLY,SUSAN )

WATSON,andJOYCEHAMILTON )

HENRY, )

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No.1O-CV-23968-UNGARO

REPLY IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE AS DEFENDANTS

FILED BY FLORIDA STATE CONFERENCE OF NAACP BRANCHES,

DEMOCRACIA AHORA, LEON W. RUSSELL, PATRICIA T. SPENCER, CAROLYN

H. COLLINS, EDWIN ENCISO, AND STEPHEN EASDALE

Podhurst Orseck, P.A.

25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 305.358.2800 Fax 305.358.2382 • Fort Lauderdale 954.463.4346 www.podhurst.com


Case 1:10-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 2 of 13

INTRODUCTION

In their opposition brief, Plaintiffs contend that Movallts must have Article III standing to

intervene and that they lack such standing because they do not have an interest in the outcome of

the litigation. I According to Plaintiffs, Movants are merely "interested in" the case as if

Movants were spectators on the sidelines of a sporting event. Plaintiffs are wrong on both the

law and the facts. The Eleventh Circuit has made it crystal clear that intervenors do not need

Article III standing. And, even if it were required, Movants clearly have standing and possess

the requisite interest in the outcome of the case to warrant their intervention. Put simply,

Plaintiffs - themselves entrenched incumbent members of Congress - want to extinguish

Movants' new state constitutional rights to protection from political gerrymandering and

redistricting done with the intent or result of abridging racial or language minority voters' equal

opportunity to participate in the political process. See PI. Const. Art. JIJ, § 20(a) ("[D]istricts

shall not be drawn with the intent or result of denying or abridging the equal opportunity of

racial or language minorities to participate in the political process or to diminish their ability to

elect representatives of their choice") ("Amendment 6"). As racial and language minority voters,

and organizations representing them, Movants' interest in preserving their own voting rights

protected by Amendment 6 and ensuring that that Plaintiffs do not succeed in rendering them

unenforceable is far from vague, undifferentiated and generalized. It is real, immediate,

particularized and intensely personal.

Plaintiffs are equally wrong in suggesting that Movants' interest will be adequately

represented by Governor Scott 2 or Secretary Browning. Mr. Browning was the very public

leader of the opposition to Amendment 6 and chaired the political action committee whose sole

I Plaintiffs do not appear to oppose the intervention of Democracia Ahora.

2 Governor Scott can veto any congressional redistricting plan the Legislature passes.

Podhurst Orseck, P.A.

25 West Flagler Street. Suite 800. Miami, FL 33130, Miami 305.358.2800 Fax 305.358.2382 • Fort Lauderdale 954.463.4346 www.podhuISt.com


Case 1:10-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 5 of 13

as Lujan), or cases that actually support Movants' position. For example, the one-line order in

The Don't Bankrupt Washington Committee v. Continental Illinois Nat'l Bank & Tmst Co., 460

U.S. 1077 (1983), is of no help to Plaintiffs. In that case, the Supreme Court dismissed the

intervenors' petition for certiorari where, on the facts of that case, the only named defendants

with whom there had been a case or controversy below were no longer in the case. Even those

intervenors, however, who were the proponents of a challenged state initiative, were pernlitted to

intervene in the lower courts, just as Movants are seeking to do here. See Continental Illinois

Nat'l Bank & Trust Co. v. Washington, 696 F.2d 692,694 (9th Cir. 1983). Nothing about the

Supreme Court's one-line denial of certiorari suggests that the proponents' intervention below

had been improper. Similarly, Plaintiffs rely on Mauso!f v. Babbitt, 85 FJd 1295 (8th Cir.

1996), in which (contrary to Eleventh Circuit law) the Eighth Circuit held that standing is

required for a defendant-intervenor. In Mauso!f, however, an environmental interest group

moved to intervene alongside the United States to defend against a suit by snowmobilers

challenging environmental regulations. The Eighth Circuit reversed the district court's denial of

intervention, holding that the association had standing to intervene because of its members'

interest in enforcement of the regulations, and that the association's interests were not adequately

represented by the governmental defendants. Id. at 1304. The same result follows here.

B. Plaintiffs'Action Threatens a Concrete. Serious Injury to Florida's Minority

Voters that Can Be Redressed bv Permitting Movants to Intervene to Defeat

Plaintiffs'Suit.

Regardless of whether the Court applies the Rule 24 standard (which Eleventh Circuit

law requires) or that for Article III standing (which Eleventh Circuit law rejects), Movants

possess the requisite interest to meet either standard. Here, a judgment in Plaintiffs' favor would

cause acute and particularized harm to Movants, and Movants thus must be permitted to

participate in preventing those harms.

Podhurst Orseck, P.A.

4

25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 305.358.2800 Fax 305.358.2382 • Fort Lauderdale 954.463.4346 www.podhurst.com


Case 1:10-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 6 of 13

In their opposition, Plaintiffs attack only superficial caricatures of Movants' interest in

the outcome of this case. They suggest that Movants' interest is having appeared as a party in

other voting rights cases, see Pis.' Opp. at 4, that the action is merely against the organizational

Movants' policies or goals, id., that the interest is somehow found in Movants' "propensity... to

file lawsuits," id. at 5, or that Movants' claim a "quasi-legislative" interest because they

supported the Amendment at the polls and worked for its passage, id. Though the Florida

NAACP and Democracia Ahora did work very hard for the Amendment's passage and did

participate in litigation aimed at keeping it off the ballot, Movants have not relied on these as the

primary interests justifying their intervention.

Indeed, the same goes for Plaintiffs. As members of Congress, they have no personalized

interest in the legal substance of their claim - that the alleged exclusive domain of the Florida

Legislature not be circumscribed. Rather, as incumbents, their obvious interest here is to nullify

Amendment 6's proscription against incumbent favoritism. And, they claim to have been

harmed by Amendment 6 as "citizens and voters." Second Am. CampI. ,-r 3. It necessarily

follows that if Plaintiffs have standing to challenge Amendment 6 as "citizens and voters,"

Movants have standing to defend it. Nor is it remotely relevant whether Movants have a unique

interest in the substantive legal ground on which Plaintiffs challenge Amendment 6, that being

the Supremacy Clause and Article T, Section 4 of the U.S. Constitution. See PIs.' Opp. at 6. No

case stands for the proposition that a potential intervenor's interest in the action must turn on the

substantive legal grounds raised by the plaintiff (which are always subject to change through

amending the complaint as Plaintiffs have done here and may continue to try to do).

By virtue of Amendment 6, Florida's minority voters, including Movants, now posses

critically important rights and protections that state law did not previously guarantee before the

Podhurst Orseck, P.A.

5

25 West Flagler Street, Suite BOO, Miami, FL 33130, Miami 305.358,2800 Fax 305.358.2382 • Fort Lauderdale 954.463.4346 www.podhurstcom


Case 1:1 0-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 8 of 13

Austin Mun. Utility Dist. No. One v. Mukasey, 572 F. Supp. 2d 221, 230 (D.D.C. 2008) (three-

judge court). As in NAMUDNO, Plaintiffs seek to strip minority voters of critical legal

protections, and minority voters and organizations seek intervention to stop them from doing so.

Similarly, in Georgia v. Ashcrqft, 539 U.S. 461 (2003), the Supreme Court affirmed a three-

judge court decision to allow African-American voters to intervene in a Section 5 preclearance

action. Jd. at 474, 476. The same result is required here. Likewise, in Clark v. Putnam County,

168 F.3d 458, 461-62 (llth Cir. 1999), a single-member district voting system intended to

benefit minority voters was under threat from a legal challenge. The Court held that "black

voters" were "entitle[d] ... to intervene." !d. And the Florida NAACP and Democracia Ahora

are entitled to intervene because Plaintiffs' suit jeopardizes their members' interests. See

Borrero v. United Healthcare ofNew York, Inc., 610 F.3d 1296 (lith Cir. 2010).4

C. The State Defendants Do Not Adequately Represent Movants' Interests.

Plaintiffs barely dispute that Movants have shown that existing parties' representation of

their interests "may be inadequate." PIs.' Opp. at 9-11. It is a "minimal" showing, see Clark,

168 F.3d at 460, and "any doubt" must be resolved in Movants' favor, Fed. Sav. & Loan Ins.

Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 216 (lIth Cir. 1993). Movants already

have shown in their opening memorandum the many reasons courts have recognized in holding

that state officials do not adequately represent the interests of private litigants. See Movants'

4 See also, e.g., East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 637 (1976)

("Respondent Marshall was permitted to intervene on behalfofhimself and all other black voters

in East CarrolL"); Republican Party ofNorth Carolina v. Martin, 865 F.2d 1259 (4th Cir. 1988)

(table) (reversing denial of intervention motion brought by association of black lawyers in case

challenging residency requirement); County Council ofSumter County, S.c. v. United States, 555

F. Supp. 694, 696-97 & 11.2 (DD.C. 1983) (citing the "long line of cases in which this Court has

routinely allowed intervention by" minority voters); NAACP, Inc. v. Fla. Ed. q!Regents, 863

So.2d 294, 300 (Fla. 2003) ("[I]t ma[kes] little sense to ... deny standing to an association tlmt

was formed to protect the rights of minorities and is composed substantially of minorities, when

policy concerning the admission ofminorities to state universities [is] changed.").

Podhurst Orseck, P.A.

7

25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 305.358.2800 Fax 305.358.2382 • Fort Lauderdale 954.463.4346 www.podhurst.com


Case 1:10-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 9 of 13

Opening Mem. at I0-11 (citing cases). Indeed, "it is normal practice in reapportionment

controversies to allow intervention of voters supporting a position that could theoretically be

adequately represented by public officials" because such officials "may represent only part ofthe

electorate." Clark, 168 F.3d at 462. The reason is simple: "like all elected officials," such

defendants have an "interest in remaining politically popular and effective leaders." ld.; Chiles,

865 F.2d at 1214-15 ("The fact that the interests are similar does not mean that approaches to

litigation will be the same."). That interest undeniably separates Movants from Defendants. As

one article explains: "The people loved the notion of doing away with blatant gerrymandering,

but the politicians who depend on the redistricting process to solidify their hold on their seats for

term after term hated it." Contemptible Pols Thwart We the People, Ocala Bus. J., Jan. 30, 2011

(attached as Exhibit J).

Plaintiff.c; respond that "the NAACP Intervenors have failed to make any factual

showing," and sarcastically claim that Movants "do not trust [Governor Scott or Secretary

Browning] to defend the action to their liking." Pis.' Opp. at 2. The reality, however, is that

Plaintiffs and Defendant Browning colluded in working tirelessly to kill Amendment 6. The

result is that the chiefopponents of core minority protections and redistricting reform are now on

both sides ofthis case, creating a perfect storm of troubling circumstances requiring intervention.

Before his appointment, Mr. Browning chaired "Protect Your Vote:' a political

committee started by Plaintiffs with the sole purpose ofpreventing the passage ofAmendments 5

and 6. See Exhibit A (Florida Department of State political comm ittee lookup for "Protect Your

Vote, Inc.''). Mr. Browning literally stood with Plaintiffs in that effort. See Mary Ellen Klas,

Corrine Brown and Mario DB: Side by Side to Protect Districts, Naked Politics: The Miami

Herald Blog, Sept. 20,2010


Case 1:10-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 10 of 13

article said: "Joining Diaz-Balart atop [Protect Your Vote} are Democratic Rep. Corrine Brown

and recently retired Florida Secretary of State Kurt Browning." Brent Batten, Fair Fight Gets

Fairer with Cash 11'!/iJsion, Naples Daily News, Oct. 10,2010 (attached as Exhibit C).

Mr. Browning repeatedly championed the Amendments' defeat, raising and spending

millions ofdollars to defeat them and personally advocating against them. For example:

• Appearing at a press conference with Plaintiffs, Mr. Browning stated that the Protect Your

Vote "committee is ready to raise and spend 'at least $4 [million] maybe more' to defeat

Amendments 5 and 6." See Klas, Exhibit B.

• Plaintiffs and Mr. Browning together argued ''to kill the constitutional amendments." See

The Hotline, Sept. 24, 2010, at 3 (attached. as Exhibit D).

• On a radio show on October 22,2010, Mr. Browning derided the Amendments as "nothing

but a pure power grab by the liberal interests." Transcript (attached as Exhibit E), at 4.

Governor Scott's appointment of Mr. Browning confirms his own opposition to the

Amendments. Indeed, it was not lost on the media that Mr. Browning's public leadership ofthe

anti-Amendments effort was followed in short order by his appointment As one article is titled:

"Scott Appoints 'Fair Districts' Foe to Run 2012 Elections." Cooper Levey-Baker, Florida

Independent, Jan. 6, 2011 (attached as Exhibit F). Governor Scott's choice of "Browning [to]

oversee Florida's 2012 elections, the first ... that will be required to adhere to the'Fair Districts'

standards," id., speaks volumes about his own animosity toward Amendment 6.

Nothing more starkly illustrates Defendant'S' contliet of interest here than their tirst

official action concerning the Amendments. Section 5 of the federal Voting Rights Act requires

"covered jurisdictions" to preclear with the Attorney General or the D.C. District Court even

minor changes in election law before they ean be implemented. Purcell v. Gonzalez, 549 U.S. 1,

2 (2006); Allen v. State Ed. ofElec., 393 U.S. 544, 566 (1969). Because five Florida counties are

"covered jurisdictions," see DeGrandy v. Wetherell, 815 F. Supp. 1550, 1574 (N.D. Fla. 1992),

the State properly submitted. an application for preclearance to the Department of Justice on

Podhurst Orseck, P.A.

9

25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 305.358.2800 Fax 305.358.2382 • Fort Lauderdale 954.463.4346 www.podhurst.com


Case 1:10-cv-23968-UU Document 41 Entered on FLSD Docket 01/31/2011 Page 11 of 13

December 10,2010. See Cover Letter to Application, Dec. 10,2010 (attached as Exhibit G).

On January 7, 2011, however - only three days after Governor Scott was inaugurated, and two

days after he appointed Secretary Browning - the State inexplicably withdrew the application at

the direction of Governor Scott. See Notice ofWithdrawal, Jan. 7,2011 (attached as Exhibit H);

Scott Pulls Back Fla. Redistricting Amendments, Miami Herald, Jan. 26, 20 II ("A spokesman

for Gov. Rick Scott has confirmed he quietly pulled back a request for federal approval of two

new redistricting amendments to the Florida Constitution.") (attached as Exhibit I). Defendants'

abrupt withdrawal of Florida's already-filed preclearance application appears calculated to delay

and possibly thwart implementation of the Amendments.

For all ofthese reasons, Movants are entitled to intervene as ofright.

II. PERMISSIVE INTERVENTION LIKEWISE SHOULD BE GRANTED

Should the Court deny Movants' request for intervention as of right, the Court should

permit Movants to intervene pernlissively. Rule 24(b)(l)(B) permits intervention for parties who

have a "a claim or defense that shares with the main action a common question of law or fact."

Plaintiffs do not dispute that Movants' meet this standard. Further, all of the considerations that

support granting Movants' motion to intervene of right support perntitting them to intervene

permissively. As Plaintiffs do not contest, Movants have tiled a timely motion that causes no

prejudice to existing parties. Movants have a compelling interest in retaining the state

constitutional minority protections Plaintiffs seek to annul and in ensuring that other such

protections survive. And Defendants - themselves opponents of Amendment 6 - will not

adequately defend Movants' interests.

CONCLUSION

For the reasons above, and those in Movants' earlier filings, Movants must be permitted

to intervene in this action.

Podhurst Orseck, P.A.

10

25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 305.358.2800 Fax 305.358.2382 • Fort Lauderdale 954.463.4346 www.podhursl.com


Case 1:10-cv-23968-UU Document 41-1 Entered on FLSD Docket 01/31/2011 Page 1 of 2

EXHIBIT A


Case 1: 10-cv-23968-UU Document 41-2 Entered on FLSD Docket 01/31/2011 Page 1 of 5

EXHIBITB


Case 1:10-cv-23968-UU Document 41-3 Entered on FLSD Docket 01/31/2011 Page 1 of 3

EXHIBIT C


Case 1:10-cv-23968-UU Document41-3 Entered on FLSD Docket 01/31/2011 Page 3 of3

Fair fight gets fairer with cash infusion Naples Daily News (Florida) October 10,2010 Sunday

Page 2

Major contributors include Acorn, the Service Employees International Union, the National Education Association,

trial lawyers and conservation groups such as the Washington, D.C.-based League ofConservation Voters.

Predictably, the first radio ads aired by Protect Your Vote attack the motives ofFair Districts Florida, pointing out

the left-leaning agendas ofthe groups financing it.

Less predictably, perhaps, Protect Your Vote has assembled a noteworthy array ofprominent Democrats and

leaders in the minority community in support ofits effort. In addition to Brown, whose district sprawls from

Jacksonville to Orlando and is cited as the poster-child for gerrymandered districts, Democratic state senators Al

Lawson and Gary Siplin, both black, are supporting Protect Your Vote.

Also on board are T. Willard Fair, president ofthe Urban League ofGreater Miami and Barbara Howard,

chairwoman ofthe Congress ofRacial Equality in Florida. All five serve on what the group calls its "African-American

Steering Committee," emphasizing the argument that, ifpassed, Amendments 5 and 6 would decrease the number of

minority members serving in the state and national legislatures.

The laws and processes surrounding district configuration in Florida are complex, but the two sides can be

summed up fairly simply.

Fair Districts Florida, which has the support ofthe NAACP, argues that the political party controlling the state

Legislature - that's been the Republican Party for the last

20 years - draws districts to maximize its majority and for the benefit of its incumbent members. Instead ofvoters

picking their representatives, representatives pick their voters, argues Ellen Frieden, the Fair Districts campaign

manager.

Diaz-Balart, Brown and others respond by saying courts have ordered some districts to be drawn in such as way as

to concentrate minority population centers together to increase the likelihood that a person ofcolor will be elected to

office. Splitting heavily Democratic minority population centers into other districts may tilt the balance ofpower in

those districts toward the Democrats, but will have the effect ofexcluding minority candidates from winning, they

contend.

Now, with an organization up and running and at least a modest amount ofmoney to work with, they can make

that contention to a broader audience.

Connect with Brent Batten at www.naplesnews.com/staff/brent_batten

LOAD-DATE: October 10,2010


Case 1:10-cv-23968-UU Document 41-4 Entered on FLSD Docket 01/31/2011 Page 1 of 6

EXHIBITD


Case 1:1 0-cv-23968-UU Document 41-4 Entered on FLSD Docket 01/31/2011 Page 2 of 6

LENGTH: 2019 words

LexisNexis(R)

HEADLINE: Back To The Drawing Board

BODY:

MAYORS: Total Recall

19 of52 DOCUMENTS

Copyright 2010 The National Journal Group, Inc.

All Rights Reserved

The Hotline

September 24,2010

Page 1

"The narrative of' DC Mayor Adrian Fenty's "rise and fall" could "also describe the political arc of' Newark Mayor

Cory Booker, Philadelphia Mayor Michael Nutter and Detroit Mayor David Bing.

Experts "see a paradox in the fact that these African-American mayors are facing such difficulties in the years after

a black man has become president. But (Pres) Barack Obama's election may have implanted an overly simplified view

ofracial politics, particularly in big cities. Fenty's race, for instance, was entangled in racial politics despite the fact that

his opponent" DC Council Chair Vincent Gray "was also an African-American."

These 4 mayors were "technocrats" who went about "forging alliances with corporate interests and prosperous

suburbs, encouraging gentrification, hiring outsiders to fill key jobs, inviting in private foundations that see the inner

cities as testing grounds for their ideas." But "some ofthe things that have brought today's technocratic mayors acclaim

from outside their communities engendered suspicion within them."

Dem pollster and ex-Obama adviser Cornell Belcher: "Ethnic politics is still very much alive and well in big-city

politics. Can you bridge the ethnic politics, or at least not trigger them in a negative way? Yes. But you have to be

strategically cognitive of it. You can't pretend that race doesn't matter, because we are somehow post-racial"

(Tumulty/Bacon, Washington Post, 9/23).

"The throw-the-rascals-out mood is so strong... that some voters are not even waiting until Election Day -- they are

mounting recall campaigns to oust mayors in the middle oftheir terms."

"Over the last two years, failed recall" camps "have sought the ouster ofmayors in" Akron, OH; Chattanooga, TN;

Flint, MI; Kansas City, MO; Portland, OR; and Toledo, OH, among other cities. "Next month the voters ofNorth Pole,"

AK "will vote on whether to recall their mayor."

"Recalls rarely get on the ballot, let alone succeed, but they are bringing the era ofpermanent, acrimonious

campaigning to city halls." US Conference ofMayors exec. dir. Tom Cochran "said the rash ofrecent attempts had

inspired him to start making a video to teach mayors about the risk ofrecall."


Case 1: 10-cv-23968-UU Document 41-4 Entered on FLSD Docket 01/31/2011 Page 3 of 6

Back To The Drawing Board The Hotline September 24,2010

"Tea Party leaders in several states have tried to recall mayors.... Tellingly, many recent recall campaigns have

been spurred not by accusations ofcorruption, but by anger over higher taxes or reduced services" (Cooper, New York

Times, 9/22)

ARIZONA: Out Out, Third Parties

A measure on the Nov. ballot "could keep minor party candidates from every becoming" AZ Gov. Prop III

"renames the position of' Sec/state to LG, but the measure "also would amend" the state constitution "to say that each

party's nominee for" GOV and LG would "run as a ticket" after winning the primary. The "idea is to ensure that ifa"

Gov. quits, dies or is impeached "his or her successor would be ofthe same party."

Page 2

But the measure "has no provision for what happens to the gubernatorial candidate ifno one from that person's

party wants to run for" LG "and that could leave a legitimately nominated minor party candidate for" GOV "unable to

seek votes." GOV nominee Barry Hess (L): "Ifwe don't have a candidate there, that would squash any attempt to go for

the other office" (Fischer, Arizona Daily Star, 9/20))

AZ is also "about to embark on its second round ofdrawing new boundaries for its legislative and" Congo "districts

under the direction ofan independent group" and "certain interests are already maneuvering for representation on the

panel that will do the work." The Legislative Latino Caucus "is already laying the groundwork to get a Hispanic

seated." State Sen. Richard Miranda: "I think we need to force the issue."

There was "no Hispanic representation" on the 1st commission (Grado, Arizona Capitol Times, 9/20).

CALIFORNIA: Power Line

The '12 CA ballot "isn't just a list oftraditional ballot initiatives and propositions" but rather "it's a toe-to-toe

slugfest between the state Legislature and anyone standing in its way." The "recurring theme" ofinitiatives "is ofthe"

Dem-controlled legislature "fighting to expand its authority, while outsiders seek to curtail it." One initiative "would

change the requirement for passing a state budget from a" 2/3rds vote to a "simple majority" allowing Dems to pass a

budget without any GOP support. But another "would restrict the Legislature's ability to raise revenue by borrowing

from the state's transportation fund or by increasing fees and levies"

Yet another would "eliminate" an "independent commission" that voters gave the authority to redistrict the state in

'12, giving the power back to the legislature, but a competing measure would "expand the redistricting commission's

authority." In theory, voters could "decide to expand the commission's authority" and "abolish it at the same time"

(Richardson, Washington Times, 9/23).

Developer Rick Caruso said 9/22 "he would consider running for" LA mayor.

Caruso, on running when Mayor Antonio Villaraigosa is termed out ofoffice in '13: "Honestly, it is something I

would like to do."

Caruso "had considered a similar run" in '08, but "eventually decided against it," citing "the potential burden of

public life on his family." Caruso "said he would not spend" over $IOOM "on his own campaign" (Kisliuk, "L.A. Now,"

Los Angeles Times, 9/22).

COLORADO: Extreme Makeover: CO Edition

"In a state known for strict constitutional limits on taxation, even" CO GOPers are "alarmed" by three ballot

measure "that would -- ofall things -- cut taxes."

"The measures -- which would lower property, income and sales taxes; limit government borrowing; and reduce

vehicle registration fees -- are widely seen as too extreme" by Dems and GOPers alike.


Case 1: 10-cv-23968-UU Document 41-4 Entered on FLSD Docket 01/31/2011 Page 4 of 6

Back To The Drawing Board The Hotline September 24,2010

State Sen. Greg Brophy (R): "I don't see them as good policy. It's like losing your job and getting sick at the same

time. I'm for limited government, but not no government."

"Ifthe measures pass," CO would lose $2.1B in revenue and "would be forced to increase school spending" by

$1.6B "to make up the shortfall created."

"Meanwhile, the question ofwho gathered the thousands ofsignatures" has been a "mystery" (Frosch, New York

Times, 9/20).

FLORIDA: Black And White Issue

Page 3

2 Reps. and an ex-FL Sec/State said 9/20 that "the Fair District Florida proposals will backfire on minority voters."

The proposals "wound forbid state legislators to favor or handicap any candidate or party in drawing the boundaries of'

Congo districts following the '10 census. Districts "would have to be as compact and contiguous as possible." Rep.

Corrine Brown (D-03), Rep. Mario Diaz-Balart (R-25), and ex-state Sec/State Kurt Browning (R) argued at a 9/20 event

"to kill the constitutional amendments."

Brown: "Passing Amendments 5 and 6 would return Florida to the days when there was no African-American

representation in Congress" (Cotterell, Florida Capital News, 9/21).

Diaz-Balart: "Those who are supporting this initiative know that their initiative will have the effect ofdiluting

minority representation both Hispanic and African-American throughout this great state."

Browning: "There will be chaos, and 1 believe there will be chaos like we've never seen before ifthese amendments

passed in 2010 as we approach 2012" (Larrabee, Florida Times Union, 9/20).

ILLINOIS: Madiganistan Man OfMystery

Chicago Tribune's Kass writes, "In their long for a political champion deep in the heart ofMadiganistan," IL

GaPers "may have found their man."

Chicago Dept. of Streets and Sanitation worker Patrick John Ryan (R) is "facing offagainst the powerful and

terrifying state" Dem "boss" IL House Speaker Michael Madigan.

There's "one little problem." The GaPers "have never met the mysterious Ryan." IL GOP chair Pat Brady: "He's so

little-know that we don't even know him. I mean, no one has seen him.... Actually, it's more than a little strange."

"So isn't it possible that the elusive Ryan is just another Madigan patsy?" Brady: "I can't believe you'd even think in

such terms. He's got the, ah -- what did Blagojevich call it? -- the intestinal fortitude to challenge Boss Madigan." Ryan

neighbor Mary Jo Bardan: "What? He's running? Running for what?" (9/23).

MASSASSCHUSETTS: Brownie Points

A GOP write-in candidate for AG "who wants to do what" Sen. Scott Brown (R) did -- beat '10 MA SEN

nominee/MA AG Martha Coakley (D) -- is offto a "pretty substantial" start, Brown said.

Brown "suggested" 9/17 that a "repeat ofhis own come-from-behind win by former prosecutor James McKenna of

Millbury is possible."

McKenna "won at least" 10K write-in votes 9/14 "to win a place" on the Nov. ballot. McKenna "claimed" 9/17

"when the tally is complete, he'll have at least" 20K.

Coakley "insisted" that "she won't be caught flat-footed again" (Heslam, Boston Herald, 9/18).


Case 1:1 0-cv-23968-UU Document 41-4 Entered on FLSD Docket 01/31/2011 Page 5 of 6

NEVADA: Do The Chachas

Back To The Drawing Board The Hotline September 24,2010

'10 SEN candidatelWall Street banker John Chachas (R) said 9/20 "he may run against" Sen. John Ensign (R) in

'12. "Chachas said he is spending about half his time" in NV and "half' in NYC. Chachas "is smart, has money and

knows the issues. The questions are, will he stay a Nevadan and will he spend the money in two years that he didn't

spend this year?" (Ralston, Las Vegas Sun, 9/21).

NORTH DAKOTA: A Fan OfEcclesiastes

'00 GOV nominee/ex-AG Heidi Heitkamp "says she has been encouraged to run" for gov. in '12 "but won't decide

until after this fall's election."

Heitkamp: "To everything there is a season.... A lot ofthe things I cared about deeply when I ran in 2000 are still

issues today. That always motivates me. It's work that I've always wanted to do. Do I still want to be governor? That

still remains to be seen" (Schmidt, Fargo Forum, 9/21).

OKLAHOMA: Indies Rock

Indies "now make up" 11.3% ofregistered voters -- "an all-time high percentage" in the state. Indie registrations

have also "been growing faster" than either the GOP's or Dem's since Jan. '10. The number ofDem voters shrunk by

.17% in that same period.

"Among new registered voters, excluding existing voters who moved within the state or switch their political

affiliation, independents accounted for" 26% "ofall voters this year."

Dems" still hold a plurality in the state... accounting for" 48.4% ofall voters. Though, "some political experts

predict the state GOP will overtake" Dems "within the next decade" (Killman, Tulsa World, 9/20).

SOUTH DAKOTA: Secrets, Secrets Are No Fun

SD's "labor unions and business organizations are squaring offon" state constitution "Amendment K, which would

guarantee the right to vote by secret ballot in... efforts to organize labor unions."

The amendment is supported by the state Chamber ofCommerce, while the State Federation ofLabor is organizing

a campaign to oppose it. SFL pres.Mark Anderson"said (the amendment) is intended to undermine works' rights to

form unions."

But Senate GOP Leader Dave Knudson" said a secret ballot in a vote on whether to form a union would protect

workers from intimidation by both union organizers and company management."

"Proposals similar to" Amendment K "are on ballots in several other states" (AP, 9/20).

UTAH: Close The Hatch!

Even as Tea Partier Rep. Jason Chaffetz (R-03) "said he is considering challenging" Sen. Orrin Hatch (R) in '12,

Hatch said he supported the Tea Party.

Hatch: "I'll stand up for the tea party every time. These people are angry -- justifiably angry. They're taking a part

in the process. They're making a difference" (Burr, Salt Lake Tribune, 9/22).

VIRGINIA: Party On, Dudes

VA will hold its first Tea Party convention 10/8 to 10/9. The convention will feature Gov. Bob McDonnell (R)

Page 4


Case 1:10-cv-23968-UU Document 41-4 Entered on FLSD Docket 01/31/2011 Page 6 of 6

Back To The Drawing Board The Hotline September 24,2010

along with LG Bill Boiling (R), AG Ken Cuccinelli (R) and ex-Gov.lex-Sen. George Allen (R).

"About 3,000 people are expected to attend" the Federation ofTea Party Patriots' event, which "will include

seminars on history, public policy and grass-roots activism, as well as a presidential straw poll and a" congo "town hall

meeting for each" VA district.

"Other confirmed speakers include radio host Lou Dobbs, conservative commentator Dick Morris" and Reps. Ron

Paul (R-TX) and Steve King (R-IA) (Kumar, Washington Post, 9/21).

LOAD-DATE: September 24, 2010

Page 5


Case 1:10-cv-23968-UU Document 41-5 Entered on FLSD Docket 01/31/2011 Page 1 of 7

EXHIBITE


Case 1:1 0-cv-23968-UU Document 41-5 Entered on FLSD Docket 01/31/2011 Page 2 of 7

Patriot Room Radio: Friday, October 22,2010

Episode #99: "Redistricting Florida, another fraud brought to you by Soros, SEIU, and

America's Teachers' Union; plus Arkady from Right Condition"

Starting @ 01:12:40:

Host Clyde Middleton: All right folks. On the line now is Kurt Browning. Kurt is the former

Florida Secretary ofState. He was appointed by then-Governor Charlie Crist. Before that, he

served for twenty-six years as the Supervisor ofElections for Pasco County, Florida. He's

focused right now, as a matter offact, he is the president ofan organization called Protect Your

Vote. The focus here seems to be - well, maybe I'm gonna learn perhaps a little different, but

my initial take - is that the focus here is an end- run around, by organizations like what used to

be ACORN, SEIU, and all ofthat, against, surprisingly, a Supreme Court case that came down in

2009. And we're gonna talk a little bit more about that, but the bottom line here is redistricting.

And the Supreme Court came down in a case called Strickland - it was a plurality decision, 5-4

actually, but there was a few twists and turns in there that made it a plurality. And the Supreme

Court wound up telling us that you could not draw a district to favor a minority group ifthat

minority group had less than 50% ofthe population within there. And you couldn't go counting

people that would usually vote for a minority group - it had to be the minority group itselfwhich

is in fact a majority group within a district. So now, what has happened, is we have got

millions ofdollars poured into Florida - and Florida's important remember, because as a result

of the 2010 census, the current estimate right now is that Florida will pick up 2 more electorial

[sic] votes. There's going to be heavy redistricting down there. And instead ofgoing through

the state legislature, which is going to have its own conflict with the SCOTUS ruling, what Soros

and SEIU and NEA, the whole list ofusual culprits, are investing millions ofdollars down there

to actually amend the Florida constitution - that's the way to get around a SCOTUS case, ifyou

will, ofclaiming dominion within that state. The proposed language is brutal. We're going to go

through it in some detail. It's one ofthose things that looks good on the outside but once you

start implementing it, it's an invitation for wide-open lawsuits that are just going to go on and on

and on. It's brutal. Ok with that introduction, Kurt Browning, welcome to Patriot Room Radio.

Kurt Browning: Well thank you, and thanks for your time and allowing me to have a little bit

oftime today to talk to your listeners.

Middleton: Certainly. Now, let's start offwith this. We're talking about Amendments Five

and Six. I've got what I hope is a short question that you'll be able to answer. I've read the text

ofAmendment Five and I've read the text ofAmendment Six, and they're identical. Why are

there two amendments?

Browning: Well the first amendment, Amendment Five, deals with legislative redistricting,

which is the Florida Senate and the Florida House. Ifyou look at Amendment Six, there is a

word or two changed which deals with congressional, and I think it inserts the word

"congressional." Other than that, those amendments are the same. What Fair Districts Florida

has chosen to do is to do two separate amendments, one dealing with the Florida House and

Senate and the other one dealing with congressional district redistricting.

Middleton: Great, I do see that now. It's actually the very first word that's different. In

Amendment Six it reads "congressional" and in Amendment Five it reads "legislative." Now,

with that said, just let me read one ofthe amendments, because it's pretty short. [Reading from


Case 1:10-cv-23968-UU Document 41-5 Entered on FLSD Docket 01/31/2011 Page 3 of 7

proposed amendments.] "Legislative or congressional districts or districting plans may not be

drawn to favor or disfavor an incumbent or political party." That's Point One. Point Two:

"Districts shall not be drawn to deny racial or language minorities the equal opportunity to

participate in the political process and elect representatives oftheir choice." Point Three:

"Districts must be contiguous." Point Four: "Unless otherwise required, districts must be

compact, as equal in population as feasible, and where feasible, must make use ofexisting city,

county and geographical boundaries." [Finishes reading.] Now, I called that Points One through

Four. It's not called out that way, it's just one paragraph. But as I look at this, Kurt, and I'm an

attorney, I see the bam doors wide open there. It almost seems to contradict itself- that ifyou're

drawing a district line, you can satisfy perhaps one ofthose points, but almost by definition

you're going to violate, ifyou will, another point. Is that an accurate observation?

Browning: Clyde, you hit the nail right on the head, and that's what we're trying to get out to

Florida voters. As you read these limits, you will see that they are contradictory. What Fair

Districts Florida has done - and Fair Districts Florida is the organization that was formed to put

these two initiatives on the ballot - what they've done - is they are introducing, and want our

voters to insert in our constitution, these very contradictory, unworkable standards that they

know that the legislature will not be able to meet. Your listeners may be asking, why would they

do that? Well, I think what's happened is that they know that they cannot gain political power

through the normal course ofelections, so they're better served by what I believe will be the

eventual drawing ofFlorida Senate or House lines done by an appointed court - whether that's

the Florida Supreme Court ofwhether that's a federal court. [Inaudible, but something like: In

our republic, we elect those who represent us.] It's not a perfect system. And nowhere in this

campaign have I said - and I have said, that we need to have reforms to the system. But these

are not the reforms that we need. Once those standards, those contradictory standards, go into

our constitution, they will be there forever. They will be there in 2012, they will be there in

2022, 2030, and on and on. And this doesn't just affect us every ten years, it will affect us every

election year, because ofthose men and women who will be elected from those districts. I think

Fair Districts Florida has sold Florida voters a bill ofgoods. When you look at the title ofthe

amendment, or when you look at the group that is supporting the amendments, it's called Fair

Districts Florida, well who wouldn't be for fair districts? I'm for fair districts. Absolutely. But

certainly there's nothing fair about it. They are making it an end- run to control the state house,

the state senate, as well as Congress. And you're absolutely right Clyde, when you look at these

standards that they put in there, they know the legislature cannot meet them. As a matter offact,

in the spring, during a legislative session, representatives from Fair Districts appeared before the

Senate Reapportionment Committee, and when asked to draw a map using their standards, or

even one district, using their standards, they either wouldn't, or they couldn't. And I think that is

a telling sign that these standards are just not meet-able.

Middleton: When we take a look specifically at the holding in Bartlett v. Strickland, it is telling

us that the Voting Rights Act Section 2, specifically, cannot be invoked unless this minority

group constituted a numerical majority. Ifthe Voting Rights Act is invoked and right now - and

this is a whole separate discussion and battle going on in Washington, as a matter offact, I forget

who introduced it over the last month or so, but it was a Republican in the House, who sought to

strip the US Department ofJustice, Holder's gang, from enforcing the Voting Rights Act,

because it was intended to be a temporary act, I believe back in 1965 for the first time under

President Johnson, and it was just extended piecemeal and piecemeal and piecemeal and

Congress reauthorized it, and now we're looking to unauthorize it, which doesn't mean that we

2


Case 1:10-cv-23968-UU Document 41-5 Entered on FLSD Docket 01/31/2011 Page 4 of 7

don't care about minorities, either by skin color, ifyou will, or language-driven, which was a

subsequent modification to the act. But, we go back to the 1965 mentality, which is to say that

the states can't be trusted at this time, because the Civil Rights Act of '64, you know, had a little

bit ofpush-back and so on, and what we're saying, by taking away DOl's rights under the

Voting Rights Act, is to say, the states can police themselves. Because otherwise, you have the

strong arm ofthe Feds coming down. So now when we take a look again at the language of

Amendments Five and Six, "Districts shall not be drawn to deny racial minorities or language

minorities the equal opportunity to participate in the political process and elect representatives" ­

that almost flies right in the face ofStrickland.

Browning: It does. And I'm not sure ifFair Districts Florida folks have read Strickland. But

you're correct. What that ruling says was that states that wish to draw crossover districts, or

what we call minority access districts - and those are the districts that have 50% less voting age

population ofbeing the minority - they are free to do so. States can do that. And then it says,

"where no other prohibition exists." And guess what that prohibition is? That prohibition is

Amendments Five and Six. And therefore, what they've done, is they have said that those

minority access districts are not entitled to Voting Rights Act protection. Which means that

when the legislature convenes in the 2012 session to start drawing lines, those minority access

districts that we have in Florida cannot be drawn, because a prohibition exists. And we're

making the assumption that Five and Six are going to go in the constitution, but ifthey go in,

then those minority districts are going to disappear. The interesting thing to me about it is,

Clyde, that you have the NAACP, who is supporting Five and Six. Yet at the same time, they're

the ones that are going to be impacted significantly by these amendments because they're going

to lose representation or the potential for representation in Congress, in the state senate, and the

state house. It makes no sense to me why they would be supporting this. Now, there are those

within the NAACP, Mr. Chavis, the former National Executive Director and CEO ofthe

NAACP, he has come out and said this is a bad deal for Florida. This is a bad deal for Florida.

We have - Protect your Vote has established an African-American steering committee, as well as

a Hispanic steering committee, and they are trying to get the word out to their constituents that

this is not good for Florida. I've said this before: Florida's population is diverse. And we need

to ensure - it's just the right thing to do, I'm telling you it's just the right thing to do - we need

to ensure that our population, the diversity ofour population, is represented in Congress, the state

senate, and the state house. Fair Districts Florida does away with that and really takes us back to

pre-1992 representation in those three chambers.

Middleton: I'm really glad that you brought that up, because we do the census every ten years,

and we're just doing it now. It's completed now in 2010. But really the first time it will be used,

the redistricting results ofit, will be 2012. And so we go back to the 1990 census, and the first

time that those new districts was used was 1992. That's a twenty year window that we can look

at. And it's not as ifwe have a substantive due process issue here. Since 1992, African­

Americans and Hispanics have done very well in the state and federal legislatures representing

Florida, in terms ofnumbers. They've grown, so what's the issue here? What are they trying to

achieve?

Browning: I'm not quite sure, because it's almost contradictory in and ofitself. I'm not sure, I

go back to my original statement, I'm not sure why the NAACP would be supporting

amendments to our constitution that would diminish minority representation. I don't understand

it. I have no answer for you. I wish I did.

3


Case 1:10-cv-23968-UU Document 41-5 Entered on FLSD Docket 01/31/2011 Page 5 of 7

Middleton: Well one thing that I find interesting, looking at the list ofcontributors to, the

backers ofFive and Six, the very first name, the gentleman who gave haIfa million dollars,

Christopher Feinladter. Christopher Feinladter founded a website where he made his bones,

made his money. He sits there leading, it's pronounced Wyo-File. It's a short name for

Wyoming File. They claim to be an independent, non-profit news service focusing on the

people, places, and policy ofWyoming. Now I come from the days when the NEA hadn't quite

destroyed public education, so I walked out ofgrammar school with some understanding of

geography, and I've kept it. Florida and Wyoming are worlds apart. What is this guy doing

donating halfa million dollars to a redistricting plan in Florida?

Browning: This is the point that has aggravated me personally. You have all these folks from

outside ofour state that are wanting to tinker, wanting to amend, our state's constitution. Now

what would be their interest in our state's constitution? Well I'll tell you what the interest is.

It's power. It's control. It's being able to elect Democrats to Congress and to the state house

and to the state senate. It's so the policies ofthe liberal-leaning groups will become the law of

the land. And Clyde, one ofthe things that I failed to mention at the beginning ofthe call was

that for the past thirty-five years I've been an elections administrator, and I have been right down

the middle ofthe road. There were some people who did not know what my party affiliation

was, because that's the way that I wanted it, simply because I didn't want the Ds and the Rs to

even think that their elections were subject to my political whims. But when I retired in April of

this year, and I started reading these amendments, I just realized that I could not sit on the

sidelines anymore. And so my comment may sound somewhat political, but my point in this

piece is that I don't care ifyou're Democrat or Republican, this is not the right thing to do, and

it's nothing but a pure power grab by the liberal interests. The Democrats have drawn lines in

Florida for the past 100-plus years, and there's never been any problems. Nobody ever

complained about it - the Democrats never complained about the way the lines were drawn. The

Republicans get a crack at it in 2002, and the world's coming to an end as we know it. As I've

said before, this process is not a perfect process. What Fair Districts will tell you is that these

amendments will end all gerrymandering. It will end all the political games and remove politics

from redistricting. And that is nothing but a lie. Listen, this process is inherently political. It

has been and it will continue to be. And my point is why shouldn't it be political? It draws a

political process. So I make no apologies when it comes to the whole idea ofsaying it's not

going to end gerrymandering. It's not going to end the political games. The Democrats would

be doing it ifthey were drawing the lines, I know that for a fact. One ofthe things that Fair

Districts Florida likes to beat us up on, beat the legislature up on, is Federal District Three as the

poster child ofwhy we don't need to let the legislature to continue to draw lines in Florida.

Federal District Three, which is a minority access district, that ifthese amendments pass, will go

away. But incidentally enough, they continue to beat up the legislature on drawing this district,

when it wasn't even the legislature that drew Congressional District Three. It was the federal

courts. But they won't tell you that. They're playing loose with the facts. When they start

talking about fair districts, fair districts, fair districts, it appeals to voters. And I'm hopeful that

as voters, now that they've started going to the polls already, in Florida they're already voting,

they've already started voting absentee ballot, and ofcourse on November 2, Election Day, I

hope that between now and the time that they mark their ballot, they take the time to read these

amendments and understand what the impact is.

Middleton: Now I'm looking at your website, which is nix5and6.com­

Browning: You can also get to it at protectyourvote.com.

4


Case 1:10-cv-23968-UU Document 41-5 Entered on FLSD Docket 01/31/2011 Page 6 of 7

Middleton: Excellent. Thank you. And I'm struck by two things. First ofall, the people that

are in your steering committees, honorary chairman, and so on -- and I don't want to sound racist

or anything - and I look at all the names and then I Google a handful as well. These are the

minority leaders within the state, and I can't even use an adjective like conservative, because one

ofyour honorary chairs is Corrine Brown, who is a Congresswoman, a Democrat. You've got

people from both sides ofthe aisle backing this. Do you have any polling data that's come out?

Browning: I have not seen any polling data on this issue. I have been so busy just fighting the

fight I haven't even kept up with that. I will tell you, just going back to your other point, that

Fair Districts Florida has on their website that they are a non-partisan group. Clyde, they are

anything but non-partisan. You look at the contributors funding this movement, these

amendments. You look at Protect Your Vote, the organization that I'm chairing, and we are bipartisan.

We have Democrats, Republicans, Independents. We have folks who are just looking

out for our constitution and don't want it messed with these unworkable, chaotic standards that

are about to be put in there.

Middleton: The other thing that strikes me about your website, and from a legal standpoint

you're going to have to tell me ifit's required - I don't think it is - but you actually have links

where I can see what your contributions are, that is, who's contributing to you, and where you're

spending your money. Is that legally required ofyou?

Browning: Not on our website, it is not required. We are required to report contributions and

expenditures to the state's division ofelections on a regular basis - there's a set schedule on

which those reports are supposed to be filed. But we want to be transparent. And we have put

those contributions and those expenditures on our website. I don't think you can find that on the

Fair District Florida website, simply because I don't think they want people to understand that

they are being bankrolled by the Democrats and the liberal interest groups.

Middleton: Right, exactly.. And you won't find it because I've looked. That is very typical,

because from that standpoint, as you say, there is reporting requirements, but junkies like me, I

know how to get to those reports. Most folks, ifit's not there, it's out ofsight out ofmind. Ok

so now in summary, Kurt, the bottom line as I see it is that when the Strickland case came along,

the Supreme Court ofthe United States gave us a standard for minority districts. And we

basically couldn't favor a minority or draw a district for a minority unless they were a majority

within that geographical area. So since it's a SCOTUS decision, the only way around that is a

constitutional amendment at the state level. That is what's being pushed here, and ironically, if

this gets pushed, number one, the minority districts that we currently have are going to lose their

protections. And number two, the amendments are being written in such a way that they are selfcontradictory.

There's so many different standards, about six different standards through therewith

one ofthem even having three different levels going down, that it's inviting - it's wholesale

litigation. And we all know what happens when you get litigation: either nothing gets done or

you're compromised. That's the only way that SEIU and Soros and all these folks that want to

lock in Florida's representation at the state and federal level, and their electorial [sic] votes,

perhaps even, in a presidential election. That's the only tow-hold they can get, and they've put

almost five million dollars in trying to achieve it. Good summary?

Browning: Yes, absolutely. It's a great summary. Fair Districts Florida spent a little less than 4

million dollars just getting these two issues on the ballot. They paid a firm almost 4 million

dollars to solicit signatures from 1.7 million Florida voters. We have in Florida what we call the

Citizen Initiative Process, that's what it's called. That's where the citizens can amend their

constitution. What they've done, is they've abused the process - they've gone out and paid

5


Case 1:10-cv-23968-UU Document41-5 Entered on FLSD Docket 01/31/2011 Page? of?

groups to solicit these signatures. There's nothing citizen-initiated about these amendments.

And then what they've done is they've continued to collect large sums ofmoney from liberalleaning

groups and individuals that have come out for the campaign to convince Florida voters to

put these amendments in their constitution. It's going to be an interesting next couple ofdays

until November 2, and we're hopeful when all the votes are counted, we will know -that they

have not achieved the 60% required vote in order to amend our constitution.

Middleton: Ah, thank you. I wanted to ask that and it slipped my mind. It's actually a supermajority

vote, it's 60% required?

Browning: Yes, as a matter offact our constitution was just changed to require the 60%, just

within the last two to four years. So they must meet the 60% threshold, which is a hard thing to

do. But you know what, it's not impossible.

Middleton: Look, I've got one unfair question that I've got to ask you, but any final words on

this, or are we all set?

Browning: No I'm all set - I just appreciate your time today, more than you'll ever know.

Middleton: I appreciate the time you've given us as well. You ready? Here's the unfair

question: you were promoted up to the local county level up to the state level by then Governor

Charlie Crist. Charlie Crist saw the handwriting on the wall in the Republican primary against

Micheal Rubio, decided he could not win that and so he stepped down and is running as an

independent. The Democrat, Meeks, is fading in the polls, he's now a non-issue. And Rubio has

been several points ahead ofCrist, it tightens up a bit, but I do think that polls can get a little bit

offtowards the end. What's your feeling on the Florida Senate race?

Browning: Based on the last numbers that I have seen, Michael Rubio has held a pretty

commanding lead throughout all ofthis, even when the Governor was a registered Republican

running against Michael Rubio in the primary. It still showed Michael Rubio leading the

Governor. Maybe within a point or two, but then it would spread it back out. So then, again, I

think that when all the votes are counted on November 2, I think that Michael Rubio will end up

being our junior member ofthe Senate.

Middleton: I appreciate you not demurring on that question.

Browning: I'm not demurring on anything these days.

Middleton: All right, Kurt Browning, from the organization known as Protect Your Vote. He's

the former Secretary ofState, he has a professional interest in this, he's devoted his career to

ensuring that Floridians get to vote and have their votes counted. And right now he's fighting a

tough battle against well-monied Soros and SEIU and all those other organizations trying to

change Florida's constitution, to override a 2009 SCOTUS decision on the very same topic.

Kurt, thank you for your time.

Browning: Thank you for your time.

6


Case 1:10-cv-23968-UU Document 41-6 Entered on FLSD Docket 01/31/2011 Page 1 of 3

EXHIBIT F


Scott appoints 'Fair Districts' foe to run 2012 elections IFlorida Independent: News. Polit... Page 1 of2

Case 1:10-cv-23968-UU Document 41-6 Entered on FLSD Docket 01/31/2011 Page 2 of 3

Scott appoints 'Fair Districts' foe to run 2012 elections

By Cooper Levey-Baker 101.06.1119:18 am

Gov. Rick Scott yesterday announced his appointment of Kurt Browning as Florida's secretary of

state, a position filled by Browning from 2006 till April 2010. After resigning, Browning led Protect

Your Vote, a political committee largely bankrolled by the Republican Party of Florida that sought to

defeat Florida's so-called "Fair Districts" amendments.

The Florida Independent's Bianca Fortis investigated Browning's tenure as secretary of state last

year:

[Browning] came under fire in 2008 when he enforced Florida's Voter Registration

Verification Law - which was nicknamed "No Match, No Vote." The law, first

approved by the Florida legislature in 2005, requires new voters to submit an identifying

number, usually a driver's license number or the last four digits ofa Social Security

number, so the state can confirm an applicant's identity. tt.

Ifa match could not be found, the applicant was considered ineligible to vote.

The state was releasing lists of unmatched names as late as a week before the Nov. 4,

2008 election. "African-Americans and Hispanics combined account for 55 percent of

would-be voters on the latest list [released Oct. 28, 2008], which includes 6,194

Democrats and 1,440 Republicans," reported the Times. The law is still in effect today.

In April 2010, Browning resigned to avoid violating the legislature's new "double dipping" rules,

whichtt.

"narrowed a loophole that allowed highly paid state workers to retire and return to their

old jobs and draw two salaries," in the words of the St. Pete Times. The law forced

Browning to retire before it took effect on July 1,2010 - denying him a chance to

oversee the 2010 elections. tt.

After resigning, Browning spent the remainder of 2010 leading Protect Your Vote, a political action

committee largely bankrolled by the Republican Party of Florida that agitated for the defeat of

http://floridaindependent.com/18674/rick-scott-appoints-fair-districts-foe-to-run-20l2-elec...l/30/2011


Scott appoints 'Fair Districts' foe to run 2012 elections IFlorida Independent: News. Polit... Page 2 of2

Case 1:10-cv-23968-UU Document 41-6 Entered on FLSD Docket 01/31/2011 Page 3 of 3

Amendments 5 and 6, the so-called "Fair Districts" amendments that limit the legislature's ability to

draw district lines to protect incumbents and ensure one-party control. tt.

Now named secretary of state for a second time, Browning will oversee Florida's 2012 elections, the

first races that will take place in the newly drawn districts that will be required to adhere to the "Fair

Districts" standards.

In a YouTube clip posted before the election that has since been yanked, Browning said that

Amendments 5 and 6 would create impossible standards for the legislature to follow in the

redistricting process and that there is no doubt the battle over district lines will end in litigation.

''The last thing that Florida needs is another election season filled with litigation," Browning said. "I

believe it's just not good for Florida."

Ofcourse, the first legal action taken as a result of the passage of Amendments 5 and 6 came from

Reps. Corrine Brown, D-Jacksonville, and Mario Diaz-Balart, R-Miami, who filed suit the day after

both amendments passed.

Both Brown and Diaz-Balart served as "honorary national chairs" for Browning's Protect Your Vote.

blDg comments powered by DISQUS

Categories & Tags: Civil Rightsl Government AccountabilitylReforml Politicsl Amendment 5 1

Amendment 61 Corrine Brown 1Fair Districts Florida 1Kurt Browning IMario Diaz-Balart IProtect

Your Vote I

http://floridaindependent.com/18674/rick-scott-appoints-fair-districts-foe-to-run-2012-elec...1/30/2011


Case 1:10-cv-23968-UU Document41-7 Entered on FLSD Docket 01/31/2011 Page 1 of2

EXHIBIT G


Case 1:10-cv-23968-UU Document41-8 Entered on FLSD Docket 01/31/2011 Page 1 of3

EXHIBITH


Case 1: 10-cv-23968-UU Document 41-9 Entered on FLSD Docket 01/31/2011 Page 1 of 2

EXHIBIT I


1/28/AOase 1: 10-cv-23968-UU Docl3mefJiu4S1 E@ck IffintececrtiOlil1fWSQ.Docket 01/31/2011 Page 2 of 2


Case 1:10-cv-23968-UU Document41-10 Entered on FLSD Docket 01/31/2011 Page 1 of2

EXHIBIT J


042··


Case 1:10-cv-23968-UU Document 42 Entered on FLSD Docket 02/14/2011 Page 1 of 5

MARIO DIAZ-BALART and CORINNE

BROWN,

v.

Plaintiffs,

RICK SCOTT, in his official capacity as

Governor ofthe State ofFlorida and KURT

BROWNING, in his official capacity as

Secretary ofState ofFlorida

Defendants.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10-cv-23968-UU

RESPONSE TO ORDER TO SHOW CAUSE ON JURISDICTIONAL ISSUE

This Court has directed the Plaintiffs to state why the Court has jurisdiction to hear this

matter. The Second Amended Complaint in this action alleges that the newly enacted Article V,

Section 20 ofthe Florida Constitution, restricting the discretion ofthe Florida Legislature in

drawing Congressional districts impermissibly conflicts with the direct delegation ofauthority

found in Article I, Section 4 ofthe United States Constitution. The suit names Governor Rick

Scott and Florida Secretary ofState Kurt Browning, both in their official capacity, as party

defendants as brought pursuant to the Article I, Section 4, the Due Process Clauses ofthe Fifth

and Fourteenth Amendments ofthe United States Constitution, and 42 U.S.C. § 1983.

Article III, section 2 ofthe United States Constitution provides in relevant part:

The judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the Laws ofthe United States, and

Treaties made, or which shall be made, under their Authority; to all

Cases affecting Ambassadors, other public Ministers and Consuls;

to all Cases ofadmiralty and maritime Jurisdiction; to

Controversies to which the United States shall be a Party; to

Controversies between two or more States; between a State and

Citizens ofanother State; between Citizens ofdifferent States;


Case 1: 10-cv-23968-U U Document 42 Entered on FLSD Docket 02/14/2011 Page 2 of 5

between Citizens ofthe same State claiming Lands under Grants of

different States, and between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.

The "case or controversy" clause ofthe Constitution was modified by the Eleventh Amendment,

which provides: "The Judicial power ofthe United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one ofthe United States by Citizens of

another State, or by Citizens or Subjects ofany Foreign State." The Supreme Court held in

Seminole Tribe Florida v. Florida, 517 U.S. 44 (1996) as follows:

Although the text ofthe Amendment would appear to restrict only

the Article III diversity jurisdiction ofthe federal courts, "we have

understood the Eleventh Amendment to stand not so much for

what it says, but for the presupposition ... which it confirms."

Blatchford v. Native Village ofNoatak, 501 U.S. 775, 779, 111

S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991). That presupposition,

first observed over a century ago in Hans v. Louisiana, 134 U.S. 1,

10 S.Ct. 504, 33 L.Ed. 842 (1890), has two parts: first, that each

State is a sovereign entity in our federal system; and second, that"

'[i]t is inherent in the nature ofsovereignty not to be amenable to

the suit ofan individual without its consent.' " /d., at 13, 10 S.Ct.,

at 506 (emphasis deleted), quoting The Federalist No. 81, p. 487

(C. Rossiter ed. 1961) (A. Hamilton). See also Puerto Rico

Aqueduct andSewer Authority, supra, at 146 ("The Amendment is

rooted in a recognition that the States, although a union, maintain

certain attributes ofsovereignty, including sovereign immunity").

For over a century we have reaffirmed that federal jurisdiction over

suits against unconsenting States "was not contemplated by the

Constitution when establishing the judicial power ofthe United

States." Hans, supra, at 15, 10 S.Ct., at 507.7

In Seminole Tribe, the Indian tribe sued the State ofFlorida, naming it directly as a party, under

the Indian Gaming Act. The Court ruled that because there was no language abrogating

sovereign immunity in the Indian Gaming Act and that since the State did not waive sovereign

immunity, the District Court lackedjurisdiction to hear the case.

2


Case 1: 10-cv-23968-UU Document 42 Entered on FLSD Docket 02/14/2011 Page 3 of 5

In the instant case, neither Governor Scott nor Secretary Browning have yet to appear, so

the question ofwhether they will interpose Eleventh Amendment immunity is an open question

and one, respectfully, which is not ripe for adjudication at the moment.

Parenthetically, even ifthe Governor and Secretary do not expressly waive sovereign

immunity, the Court would still have jurisdiction to hear the case. The Supreme Court noted in

Seminole Tribe that

Thus our inquiry into whether Congress has the power to abrogate

unilaterally the States' immunity from suit is narrowly focused on

one question: Was the Act in question passed pursuant to a

constitutional provision granting Congress the power to abrogate?

See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456, 96 S.Ct.

2666,2669-2671, 49 L.Ed.2d 614 (1976). Previously, in

conducting that inquiry, we have found authority to abrogate under

only two provisions ofthe Constitution. In Fitzpatrick, we

recognized that the Fourteenth Amendment, by expanding federal

power at the expense ofstate autonomy, had fundamentally altered

the balance ofstate and federal power struck by the Constitution.

Id., at 455, 96 S.Ct., at 2671. We noted that § 1 ofthe Fourteenth

Amendment contained prohibitions expressly directed at the States

and that § 5 ofthe Amendment expressly provided that "The

Congress shall have the power to enforce, by appropriate

legislation, the provisions ofthis article." See id., at 453, 96 S.Ct.,

at 2670 (internal quotation marks omitted). We held that through

the Fourteenth Amendment, federal power extended to intrude

upon the province ofthe Eleventh Amendment and therefore that §

5 ofthe Fourteenth Amendment allowed Congress to abrogate the

immunity from suit guaranteed by that Amendment.

517 U.S. at_. In the instant case, the Plaintiffs seek reliefunder the Due Process Clause of

the Fourteenth Amendment. In accordance with the holding in Seminole Tribe, this Court has

jurisdiction to hear the instant case.

However, because the Fourteenth Amendment is not self-executing and because a claim

may not be brought simply alleging that constitutional provision, a complaint seeking to

vindicate a federal constitutional right must have a statutory underpinning. Here, the Second

3


Case 1:10-cv-23968-U U Document 42 Entered on FLSD Docket 02/14/2011 Page 4 of 5

Amended Complaint brings this case under Section 1983 ofTitle 42 ofthe United States Code.'

Section 1983 does not provide substantive rights, but merely serves to provide a remedy for

violations ofthe Constitution or substantive statutes. Chapman v. Houston Welfare Rights Org.,

441 U.S. 600, 617 (1979).

The new pleading does not seek to raise a claim against the State ofFlorida, but rather

asserts a cause ofaction against both thee Governor and the Secretary ofState, in their official

capacity, to keep them from enforcing the new amendment to the Florida Constitution. The new

amendment will clearly require them to act "under color" ofFlorida law to enforce Article III,

Section 20 ofthe Florida Constitution, which it is alleged that will deprive the Plaintiffs oftheir

rights, privileges and immunities secured by the United States Constitution.

In order to state a claim for reliefunder § 1983, the plaintiffneed only allege that the

defendant deprived him or her under color ofstate law ofa right secured by the Constitution and

the laws ofthe United States. Gomez v. Toledo, 446 U.S. 635, 640 (1980)(" By the plain terms of

§ 1983, two--and only two--allegations are required in order to state a cause ofaction under

that statute. First, the plaintiffmust allege that some person has deprived him ofa federal right.

Second, he must allege that the person who has deprived him ofthat right acted under color of

, Section 1983 provides:

Every person who, under color ofany statute, ordinance,

regulation, custom, or usage, ofany State or Territory or the

District ofColumbia, subjects, or causes to be subjected, any

citizen ofthe United States or other person within the jurisdiction

thereofto the deprivation ofany rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a

judicial officer for an act or omission taken in such officer's

judicial capacity, injunctive reliefshall not be granted unless a

declaratory decree was violated or declaratory reliefwas

unavailable.

4


Case 1: 10-cv-23968-UU Document 42 Entered on FLSD Docket 02/14/2011 Page 5 of 5

state or territorial law. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d

492 (1961). The instant Second Amended Complaint meets this pleading requirement.

In short, this Court has jurisdiction to hear the claim raised by Plaintiffs in the Second

Amended Complaint.

STEPHEN M. CODY, ESQ.

Attorney for Plaintiffs

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone 305-753-2250

Email stcody@stephencody.com

sl Stephen M. Cody

CERTIFICATE OF SERVICE

Florida Bar No. 334685

I HEREBY CERTIFY that a copy was served on all parties eligible to receive service via

CM/ECF and upon all persons not eligible by U.S. Mail.

5

sl Stephen M. Cody


043


044


045


Case 1:10-cv-23968-UU Document 45 Entered on FLSD Docket 03/01/2011 Page 2 of 5

they run for Congress, they will be subjected to the Congressional redistricting legislation

developed during the 2011-2012 state legislative session.

The grounds for intervention are set forth in the Memorandum in Support ofthis

Motion, which the State Legislators incorporate herein by reference. Attached hereto is

the State Legislators' Proposed Answer. The attached Proposed Answer sets forth the

defenses for which intervention is sought.

WHEREFORE, the State Legislators request that the Court grant their Motion for

Leave to Intervene as Defendants.

CERTIFICATE OF GOOD FAITH CONFERENCE

I hereby certify that counsel for the State Legislators has conferred with all parties

and all potential intervenors in a good faith effort to resolve the issues raised in the

motion and states Plaintiffs oppose the Motion whereas proposed Defendant-Intervenors

NAACP parties and the ACLU parties do not oppose the Motion. Proposed Plaintiff-

Intervenor The Florida House ofRepresentatives was unable to provide its position on

the Motion prior to filing.

JONL. MILLS

Fla. Bar No. 148286

jmills@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

100 Southeast Second Street

Suite 2800

Miami, Florida 33131

Telephone: (305) 539-8400

Facsimile: (305) 539-1307

Respectfully submitted,

s/Carl E. Goldfarb

STUART H. SINGER

Fla. Bar No. 377325

ssinger@bsfllp.com

CARL E. GOLDFARB

Fla. Bar No. 125891

cgoldfarb@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

401 East Las Olas Boulevard

Suite 1200

Fort Lauderdale, Florida 33301

Telephone: (954) 356-0011

Facsimile: (954) 356-0022

2


Case 1:10-cv-23968-UU Document 45 Entered on FLSD Docket 03/01/2011 Page 3 of 5

JOSEPH W. HATCHETT

Fla. Bar No. 34486

joseph.hatchett@akerman.com

AKERMAN SENTERFITT

106 East College Avenue

12th Floor

Tallahassee, Florida 32301

Telephone: (850) 224-9634

Facsimile: (850) 222-0103

KAREN C. DYER

Fla. Bar No. 716324

kdyer@bsfllp.com

GARY K. HARRIS

Fla. Bar No. 0065358

gharris@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

121 South Orange Avenue

Suite 840

Orlando, Florida 32801

Telephone: (407) 425-7118

Facsimile: (407) 425-7047

Attorneysfor the State Legislators

3


Case 1: 10-cv-23968-UU Document 45 Entered on FLSD Docket 03/01/2011 Page 4 of 5

CERTIFICATE OF SERVICE

I hereby certify that on March 1,2011, I electronically filed the foregoing Motion

For Leave To Intervene As Defendants with the Clerk ofthe Court using CM/ECF. I also

certify that the foregoing document is being served this day on all counsel ofrecord or

pro se parties identified on the attached Service List in the manner specified, either via

transmission ofNotices ofElectronic Filing generated by CM/ECF or in some other

authorized manner for those counselor parties who are not authorized to receive

electronically Notices ofElectronic Filing.

4

s/Carl E. Goldfarb

Carl E. Goldfarb


Case 1:10-cv-23968-UU Document 45 Entered on FLSD Docket 03/01/2011 Page 5 of 5

SERVICE LIST

Diaz-Balart and Brown v. State ofFlorida

Case No. lO-CV-23968-UNGARO

United States District Court, Southern District ofFlorida

Stephen M. Cody

stcody@stephencody.com

800 South Douglas Road, Suite 850

Coral Gables, Florida 33134-2088

Telephone: 305-416-3135

Facsimile: 305-416-3153

Attorney for Plaintiffs Diaz-Balart and Corrine Brown

(Service by CMlECF)

Eric R. Haren

eharen@jenner.com

Michael B. DeSanctis

mdesanctis@jenner.com

Paul Smith

psmith@jenner.com

Jenner & Block, LLP

1099 New YoIk Avenue, NW

Washington, DC 20001

Telephone: 202-639-6000

Facsimile: 202-639-6066

Stephen Frederick Rosenthal

srosenthal@podhurst.com

Podhurst Orseck Josefsberg, et al

City National Bank Building

25 West Flagler Street, Suite 800

Miami, FL 33130-1780

Telephone: 305-358-2800

Facsimile: 305-358-2382

J. Gerald Hebert

GHebert@campaigniegalcenter.orgt

191 Somervelle Street, Suite 405

Alexandria, Virginia 22304

Telephone: 703-628-4673

Facsimile: 703-567-5876

Attorneys for Proposed Intervening Defendants

Florida State Conference ofNAACP Branches,

Democracia Ahora, Leon W. Russell, Patricia T.

Spencer, Carolyn H. Collins, Edwin Enciso, Stephen

Easdale

(Service by CMlECF)

5

Randall C. Marshall

rmarshall@aclufl.org

American Civil Liberties Union

Foundation ofFlorida

4500 Biscayne Boulevard, Suite 340

Miami, Florida 33137-3227

Telephone: 786-363-2700

Facsimile: 786-363-1108

Moffatt Laughlin McDonald

Imcdonald@aclu.org

American Civil Liberties Union

Foundation Inc.

230 Peachtree Street, NW, Suite 1440

Atlanta, Georgia 30303-1227

Telephone: 404-523-2721

Facsimile:

Attorneys for Proposed Intervening Defendants

ACLU, Howard Simon, Susan Watson, Joyce

Hamilton Henry, and Benetta Standly

(Service by CMlECF)

Miguel De Grandy

mad@degrandylaw.com

800 Douglas Road, Suite 850

Coral Gables, Florida 33134-2088

Telephone: 305-444-7737

Facsimile: 305-443-2616

George N. Meros, Jr.

gmeros@gray-robinson.com

Allen C. Winsor

awinsor@gray-robinson.com

Gray Robinson P.A.

Post Office Box 11189

Tallahassee, Florida 32302-1189

Telephone: 850-577-9090

Facsimile: 850-577-3311

Attorneys for Proposed Intervenor The Florida House

ofRepresentatives

(Service by CMlECF)


Case 1:10-cv-23968-UU Document 45-1 Entered on FLSD Docket 03/01/2011 Page 2 of 7

2. The State Legislators deny that Plaintiffs have stated a valid cause of

action or are entitled to the reliefreferenced in the allegations ofParagraph 2 ofthe

Second Amended Complaint.

PARTIES

3. The State Legislators admit the allegations ofParagraph 3 ofthe Second

Amended Complaint.

4. The State Legislators admit the allegations ofParagraph 4 ofthe Second

Amended Complaint.

5. The State Legislators admit that PlaintiffDiaz-Balart is a citizen ofthe

State ofFlorida and is a resident of, and registered to vote in, Miami-Dade County. The

State Legislators admit further that PlaintiffDiaz-Balart served for one term as U.S.

Representative for Florida's 23rd congressional district, and that PlaintiffDiaz-Balart

serves in the 112th Congress as U.S. Representative for Florida's 21st congressional

district. The State Legislators are without knowledge or information sufficient to form a

beliefas to the truth ofthe remaining allegations ofParagraph 5 ofthe Second Amended

Complaint and, therefore, deny the same.

6. The State Legislators are without knowledge or information sufficient to

form a beliefas to the truth ofthe allegations ofParagraph 5 ofthe Second Amended

Complaint regarding PlaintiffCorrine Brown's intent to run for Congress and, therefore,

deny the same. The State Legislators admit the remaining allegations ofParagraph 6 of

the Second Amended Complaint.

2


Case 1:10-cv-23968-UU Document 45-1 Entered on FLSD Docket 03/01/2011 Page 3 of 7

JURISDICTION AND VENUE

7. The State Legislators deny that Plaintiffs have stated a valid cause of

action that arises under the Constitution and laws ofthe United States. The State

Legislators further deny that this Court has subject matter jurisdiction over Plaintiffs'

alleged cause ofaction.

8. The State Legislators admit the allegations ofParagraph 8 ofthe Second

Amended Complaint.

FACTS

9. The State Legislators are informed and believe the Florida Department of

State approved an initiative petition sponsored by FairDistrictsFlorida.org on or about

September 28, 2007, which sets forth standards for the Legislature to follow in

congressional redistricting, and that such petition was placed on the November 2010

general election ballot as Amendment 6. As such, the State Legislators admit the same.

10. The State Legislators admit the allegations ofParagraph 10 ofthe Second

Amended Complaint.

11. The State Legislators admit the allegations ofParagraph 11 ofthe Second

Amended Complaint.

12. The State Legislators deny the allegations ofParagraph 12 ofthe Second

Amended Complaint.

13. The State Legislators deny the allegations ofParagraph 13 ofthe Second

Amended Complaint.

3


Case 1:10-cv-23968-UU Document 45-1 Entered on FLSD Docket 03/01/2011 Page 4 of 7

14. The State Legislators are without knowledge or information sufficient to

form a beliefas to the truth ofthe allegations ofParagraph 14 ofthe Second Amended

Complaint and, therefore, deny the same.

COUNT I - VIOLATION OF THE SUPREMACY AND DUE PROCESS

CLAUSES OF THE UNITED STATES CONSTITUTION

15. The State Legislators restate, reallege, and incorporate by reference their

responses to Paragraphs 1 through 14 ofthe Second Amended Complaint as iffully set

forth herein.

16. The State Legislators admit that the Supremacy Clause provides that

"[t]his Constitution, and the laws ofthe United States which shall be made in pursuance

thereof; and all treaties made, or which shall be made, under the authority ofthe United

States, shall be the supreme law ofthe land; and the judges in every state shall be bound

thereby, anything in the Constitution or laws ofany State to the contrary

notwithstanding."

17. The State Legislators admit the allegations ofParagraph 17 ofthe Second

Amended Complaint.

18. The State Legislators deny the allegations ofParagraph 18 ofthe Second

Amended Complaint.

19. The State Legislators admit the allegations ofParagraph 19 ofthe Second

Amended Complaint.

20. The State Legislators admit the allegations ofParagraph 20 ofthe Second

Amended Complaint.

21. The State Legislators admit that the provisions ofChapter 1, Title 2 ofthe

U.S. Code regulate the election ofU.S. Representatives. In all other respects, the State

4


Case 1: 10-cv-23968-UU Document 45-1 Entered on FLSD Docket 03/01/2011 Page 5 of 7

Legislators are without knowledge or information sufficient to form a beliefas to the

truth ofthe allegations ofParagraph 21 ofthe Second Amended Complaint and,

therefore, deny the same.

22. The State Legislators deny the allegations ofParagraph 22 ofthe Second

Amended Complaint.

23. The State Legislators deny the allegations ofParagraph 23 ofthe Second

Amended Complaint.

24. The State Legislators deny the allegations ofParagraph 24 ofthe Second

Amended Complaint.

25. The State Legislators deny the allegations ofParagraph 25 ofthe Second

Amended Complaint.

26. The State Legislators deny that Plaintiffs have stated a valid cause of

action as implied by the allegations ofParagraph 26 ofthe Second Amended Complaint.

COUNT IT - PREEMPTION UNDER FEDERAL LAW

27. The State Legislators restate, reallege, and incorporate by reference their

responses to Paragraphs 1 through 14 and Paragraphs 16 through 26 ofthe Second

Amended Complaint as iffully set forth herein.

28. The State Legislators deny the allegations ofParagraph 25 ofthe Second

Amended Complaint.

PRAYER FOR RELIEF

The State Legislators deny that Plaintiffs are entitled to the reliefrequested in

Paragraphs A through E ofthe unnumbered WHEREFORE paragraph, or any relief

whatsoever.

5


Case 1:1 0-cv-23968-UU Document 45-1 Entered on FLSD Docket 03/01/2011 Page 6 of 7

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

Plaintiffs Second Amended Complaint, and each count thereof, fails to state a

cause ofaction upon which reliefcan be granted.

SECOND AFFIRMATIVE DEFENSE

This Court lacks subject matter jurisdiction over Plaintiffs' Second Amended

Complaint, and each count thereof, because Plaintiffs' claims do not "aris[e] under the

Constitution, laws, or treaties ofthe United States," as that phrase is used in 28 U.S.c. §

1331, and because 28 U.S.C. § 1346(a)(2) is inapplicable to this action.

thereof.

THIRD AFFIRMATIVE DEFENSE

Plaintiffs lack standing to bring the Second Amended Complaint, and each count

FOURTH AFFIRMATIVE DEFENSE

The claims ofPlaintiffs' Second Amended Complaint are not ripe and, therefore,

are not justiciable.

FIFTH AFFIRMATIVE DEFENSE

The claims ofPlaintiffs' Second Amended Complaint raise political questions

which are not justiciable.

6


Case 1:1 0-cv-23968-UU Document 45-1 Entered on FLSD Docket 03/01/2011 Page 7 of 7

JONL. MILLS

Fla. Bar No. 148286

jmills@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

100 Southeast Second Street

Suite 2800

Miami, Florida 33131

Telephone: (305) 539-8400

Facsimile: (305) 539-1307

JOSEPH W. HATCHETT

Fla. Bar No. 34486

joseph.hatchett@akerman.com

AKERMAN SENTERFITT

106 East College Avenue

12th Floor

Tallahassee, Florida 32301

Telephone: (850) 224-9634

Facsimile: (850) 222-0103

Respectfully submitted,

s/Carl E. Goldfarb

STUART H. SINGER

Fla. Bar No. 377325

ssinger@bsfllp.com

CARL E. GOLDFARB

Fla. Bar No. 125891

cgoldfarb@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

401 East Las alas Boulevard

Suite 1200

Fort Lauderdale, Florida 33301

Telephone: (954) 356-0011

Facsimile: (954) 356-0022

KAREN C. DYER

Fla. Bar No. 716324

kdyer@bsfllp.com

GARY K. HARRIS

Fla. Bar No. 0065358

gharris@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

121 South Orange Avenue

Suite 840

Orlando, Florida 32801

Telephone: (407) 425-7118

Facsimile: (407) 425-7047

Attorneysfor the State Legislators

7


046


Case 1:10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MARIO DIAZ-BALART and CORRINE )

BROWN, )

)

Plaintiffs, )

)

vs. )

)

RICK SCOTT, in his official capacity as )

Governor ofthe State ofFlorida, and )

KURT S. BROWNING, in his official )

capacity as Secretary ofthe State of )

Florida, )

)

Defendants, )

)

and )

)

ARTHENIA L. JOYNER, JANET CRUZ, )

LUIS R. GARCIA, JR., JOSEPH A. )

GIBBONS, and PERRY E. THURSTON, )

JR., )

)

Defendant-Intervenors. )

Case No. 10-CV-23968-UNGARO

MEMORANDUM IN SUPPORT OF THE STATE LEGISLATORS'

MOTION FOR LEAVE TO INTERVENE AS DEFENDANTS

Senator Arthenia L. Joyner, Representative Janet Cruz, Representative Luis R.

Garcia, Jr., Representative Joseph A. Gibbons, and Representative Perry E. Thurston, Jr.

(each a "State Legislator," and together the "State Legislators") respectfully submit this

memorandum in support oftheir motion to intervene as ofright in this action wherein

Plaintiffs claim Article III, Section 20 ofthe Florida Constitution violates the United

States Constitution. The State Legislators, elected officials who have sworn to uphold

the Florida Constitution, seek to enforce the will ofthe people and ensure that Florida's

redistricting process complies with Article III, Section 20 ofthe Florida Constitution. In


Case 1:10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 2 of 9

the alternative, the State Legislators move for permissive intervention pursuant to Federal

Rule ofCivil Procedure 24(b).

I. THE STATE LEGISLATORS ARE ENTITLED TO

INTERVENE IN TillS ACTION AS A MATTER OF RIGHT.

On a timely motion,! Federal Rule ofCivil Procedure 24(a)(2) provides

intervention as ofright for one who:

claims an interest relating to the property or transaction that is the subject ofthe

action, and is so situated that disposing ofthe action may as a practical matter

impair or impede the movant's ability to protect its interest, unless existing parties

adequately represent that interest.

The State Legislators satisfy these requirements.

A. The State Legislators Have a Substantial

Interest in the Transaction.

The State Legislators, who seek to join this action as Intervenor-Defendants,

"need not demonstrate ... standing in addition to meeting the requirements ofRule 24."

Chiles v. Thornburgh, 856 F.2d 1197, 1213 (lIth Cir. 1989); see also Dillard v. Chilton

County Comm 'n, 495 F.3d 1324, 1337 (lIth Cir. 2007) (noting "an intervenor need not

make an independent showing that he or she meets the standing condition ofArticle

IlL"); Roeder v. Islamic Republic ofIran, 333 F.3d 228, 233 (D.C. Cir. 2004)

("Requiring standing ofsomeone who seeks to intervene as a defendant runs into the

doctrine that the standing inquiry is directed at those who invoke the court's jurisdiction."

I The State Legislators' motion to intervene is timely under the four-factor test articulated by the

Eleventh Circuit in United States v. Jefferson County, 720 F.2d 1511, 1516 (11th Cir. 1983). This action is

still in it nascent stages. The effective date ofthe operative complaint is January 31, 2011. Defendants

have not yet answered or otherwise responded to the operative complaint. There has been no discovery,

and the Court has not yet held a Case Scheduling and Management Conference. Further, motions to

intervene from several parties are pending before the Court. Thus, there has been no delay. No party will

be prejudiced by the State Legislators' intervention. Lastly, the State Legislators' interests will be

impacted significantly by the outcome ofthis action, and they will be greatly prejudiced ifthis motion is

denied.

2


Case 1: 10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 3 of 9

(citations omitted)). Rather, the State Legislators need demonstrate only an interest in the

implementation ofArticle III, Section 20 ofthe Florida Constitution, the "transaction that

is the subject ofthe action." Fed. R. Civ. P. 24(a)(2).

There can be no doubt that, as elected members ofthe Florida Legislature, sworn

to uphold Florida's Constitution and the Constitution ofthe United States, the State

Legislators have a plain and direct interest in ensuring compliance with Article III,

Section 20 ofthe Florida Constitution. Likewise, the State Legislators have "a plain,

direct and adequate interest in maintaining the effectiveness oftheir votes" in the Florida

Legislature. Chiles, 856 F.2d at 1205 (quoting Coleman v. Miller, 307 U.S. 433, 438

(1939)). As legislators, they have an "expectation that certain procedures will be

followed in the legislative process." Id. at 1206. When such procedures are not

followed, a legislator's loss ofeffectiveness is a legally cognizable injury. Id.

Here, the State Legislators participation in the legislative process resulting in ­

and the efficacy oftheir votes regarding - Congressional redistricting legislation is

directly impacted by Plaintiffs' claim that the Florida Legislature is not bound by Article

III, Section 20 ofthe Florida Constitution. The Florida Legislature must follow the

lawmaking process set forth in the Florida Constitution, including the standards set forth

in Article III, Section 20, while crafting Congressional redistricting legislation.

Plaintiffs' and the Florida House ofRepresentatives, however, represent to this Court that

the Florida Legislature is free to ignore the procedures and standards set forth in the

Florida Constitution. Plaintiffs and the Florida House ofRepresentatives are wrong and,

ifthey succeed in this action, will subject the State Legislators to a flawed legislative

3


Case 1:10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 4 of 9

process. The State Legislators have a direct interest in ensuring the integrity ofthe

legislative process in which they participate.

Further, each State Legislator is a potential candidate for Congress under the

apportionment plan that will be drawn according to the Florida lawmaking process. Each

has a direct interest in having the districts drawn lawfully under the Florida Constitution.

Thus, as prospective Congressional candidates, the State Legislators possess an actual,

concrete and particularized interest in the outcome ofthis action. See, e.g., Daggett v.

Comm 'n on Governmental Ethics & Election Practices, 172 F.3d 104, 109-10 (1st Cir.

1999) (holding prospective candidates for office may intervene, and have a concrete stake

in the outcome of, an action challenging a state electioneering statute).

B. The State Legislators' Ability to Protect Their Interests

Will Be Impaired or Impeded iflntervention is Denied.

The resolution ofthis action will directly affect the State Legislators' ability to

protect their interests. Ifthis Court grants the reliefrequested by Plaintiffs, the Florida

Legislature may proceed with the Congressional redistricting process without complying

with the provisions ofArticle III, Section 20. Movants would be participants in a

legislative process that ignores the provisions ofthe Florida Constitution as well as the

will ofover 60 percent ofthe Florida electorate. As such, this requirement ofRule

24(a)(2) is clearly satisfied. See, e.g., Chiles, 865 F.2d at 1214 ("Where a party seeking

to intervene in an action claims an interest in the very property and very transaction that

is the subject ofthe main action, the potential stare decisis effect may supply that

practical disadvantage which warrants intervention as ofright.").

4


Case 1: 10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 5 of 9

C. The State Legislators' Interests Cannot be

Adequately Represented by the Existing Parties.

The burden ofshowing that the existing parties cannot adequately represent an

intervenor's interests is minimal, Georgia v. Us. Army Corps ofEngineers, 302 F.3d

1242, 1255-56 (lith Cir. 2002), and any doubt on the matter is resolved in the

intervenor's favor, Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing District,

983 F.2d 211, 216 (lith Cir. 1993). This "adequate representation" requirement ofRule

24(a)(2) is satisfied in two ways.

First, the named Defendants cannot adequately represent the interests ofthe State

Legislators. The State Legislators seek to faithfully apply Article III, Section 20 ofthe

Florida Constitution. As presented by the NAACP parties,2 the Court has before it

evidence that Governor Scott and Secretary Browning have worked, both before and after

the 2010 election, to undermine and defeat the reforms found in Article III, Section 20 of

the Florida Constitution. Such evidence is sufficient to show that the interests ofthe

State Legislators diverge from that ofDefendants, satisfying this requirement. See, e.g.,

Utah Ass 'n ofCounties v. Clinton, 255 F.3d 1246, 1254 (lOth Cir. 2001) ("The

possibility that the interests ofthe applicant and the parties may diverge 'need not be

great' in order to satisfy" the adequacy ofrepresentation requirement ofRule 24(a)(2).).

Second, Defendants cannot adequately represent the State Legislators' interests

because Governor Scott and Secretary Browning have different roles in the lawmaking

process that is the subject ofthis action. Defendants have different inputs in that process.

2 The State Legislators see no need to repeat the arguments ofthe NAACP parties and submit

duplicative evidence to the Court. Rather, movants rely on the materials and articles submitted to the Court

by the NAACP parties at Docket Entry No. 41. Ifthe Court requires additional argument on that topic, or

prefers that the State Legislators submit such materials in support oftheir Motion, the State Legislators

respectfully request that the Court permit the State Legislators to submit a supplemental memorandum.

5


Case 1:10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 6 of 9

They have different constituencies as well, and different political goals and aspirations.

Put simply, Governor Scott and Secretary Browning are not similarly-situated with the

State Legislators in Florida's lawmaking process and, therefore, cannot adequately

represent the interests ofthe State Legislators.

II. THE STATE LEGISLATORS SHOULD BE ALLOWED

TO INTERVENE PURSUANT TO RULE 24(b).

Ifthis Court determines that intervention ofright is not appropriate, the State

Legislators request that the Court grant permissive intervention under Rule 24(b)(I).

That Rule permits intervention for parties who have a "claim or defense that shares with

the main action a common question oflaw or fact." Fed. R. Civ. P. 24(b)(l)(B). This

"common interest" requirement is liberally construed. Stallworth v. Monsanto Co., 558

F.2d 257,269 (5th Cir. 1979).

Here, the State Legislators seek to demonstrate that the United States Constitution

does not permit the Florida Legislature to ignore the will ofFlorida's people as expressed

in the Florida Constitution. Further, because it is clear that legal issues affecting all of

the parties - including the State Legislators - will dominate this action, intervention will

provide "little strain on the court's time and no prejudice to the litigants" ifthe Court

grants this motion. See id. at 270 (finding no abuse ofdiscretion in a case involving

predominantly legal issues where the district court granted permission to intervene to a

group ofworkers in an action brought by another group ofworkers against the same

defendant). Intervention will also provide this Court with the uniquely-situated

perspective ofthe State Legislators, who are members ofthe party in the minority in the

Florida Legislature.

6


Case 1:10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 7 of 9

Ill. CONCLUSION

For the foregoing reasons, this Court should grant the State Legislators

intervention ofright under Rule 24(a)(2) or, in the alternative, permissive intervention

under Rule 24(b).

JONL. MILLS

Fla. Bar No. 148286

jmills@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

100 Southeast Second Street

Suite 2800

Miami, Florida 33131

Telephone: (305) 539-8400

Facsimile: (305) 539-1307

JOSEPH W. HATCHETT

Fla. Bar No. 34486

joseph.hatchett@akerman.com

AKERMAN SENTERFITT

106 East College Avenue

12th Floor

Tallahassee, Florida 32301

Telephone: (850) 224-9634

Facsimile: (850) 222-0103

Respectfully submitted,

s/Carl E. Goldfarb

STUART H. SINGER

Fla. Bar No. 377325

ssinger@bsfllp.com

CARL E. GOLDFARB

Fla. Bar No. 125891

cgoldfarb@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

401 East Las 01as Boulevard

Suite 1200

Fort Lauderdale, Florida 33301

Telephone: (954) 356-0011

Facsimile: (954) 356-0022

KAREN C. DYER

Fla. Bar No. 716324

kdyer@bsfllp.com

GARY K. HARRIS

Fla. Bar No. 0065358

gharris@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

121 South Orange Avenue

Suite 840

Orlando, Florida 32801

Telephone: (407) 425-7118

Facsimile: (407) 425-7047

Attorneysfor the State Legislators

7


Case 1:10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 8 of 9

CERTIFICATE OF SERVICE

I hereby certify that on March 1,2011, I electronically filed the foregoing

Memorandum In Support OfMotion For Leave To Intervene As Defendants with the

Clerk ofthe Court using CM/ECF. I also certify that the foregoing document is being

served this day on all counsel ofrecord or pro se parties identified on the attached Service

List in the manner specified, either via transmission ofNotices ofElectronic Filing

generated by CM/ECF or in some other authorized manner for those counselor parties

who are not authorized to receive electronically Notices ofElectronic Filing.

8

s/Carl E. Goldfarb

Carl E. Goldfarb


Case 1:10-cv-23968-UU Document 46 Entered on FLSD Docket 03/01/2011 Page 9 of 9

SERVICE LIST

Diaz-Balart and Brown v. State ofFlorida

Case No. lO-CV-23968-UNGARO

United States District Court, Southern District ofFlorida

Stephen M. Cody

stcody@stephencody.com

800 South Douglas Road, Suite 850

Coral Gables, Florida 33134-2088

Telephone: 305-416-3135

Facsimile: 305-416-3153

Attorney for Plaintiffs Diaz-Balart and Corrine Brown

(Service by CMlECF)

Eric R. Haren

eharen@jenner.com

Michael B. DeSanctis

mdesanctis@jenner.com

Paul Smith

psmith@jenner.com

Jenner & Block, LLP

1099 New York Avenue, NW

Washington, DC 20001

Telephone: 202-639-6000

Facsimile: 202-639-6066

Stephen Frederick Rosenthal

srosenthal@podhurst.com

Podhurst Orseck Josefsberg, et aI

City National Bank Building

25 West Flagler Street, Suite 800

Miami, FL 33130-1780

Telephone: 305-358-2800

Facsimile: 305-358-2382

J. Gerald Hebert

GHebert@campaignlegaicenter.orgt

191 Somervelle Street, Suite 405

Alexandria, Virginia 22304

Telephone: 703-628-4673

Facsimile: 703-567-5876

Attorneys for Proposed Intervening Defendants

Florida State Conference ofNAACP Branches,

Democracia Ahora, Leon W. Russell, Patricia T.

Spencer, Carolyn H. Collins, Edwin Enciso, Stephen

Easdale

(Service by CMlECF)

9

RandallC. Marshall

rmarshall@ac1ufl.org

American Civil Liberties Union

Foundation ofFlorida

4500 Biscayne Boulevard, Suite 340

Miami, Florida 33137-3227

Telephone: 786-363-2700

Facsimile: 786-363-1108

Moffatt Laughlin McDonald

Imcdonald@ac1u.org

American Civil Liberties Union

Foundation Inc.

230 Peachtree Street, NW, Suite 1440

Atlanta, Georgia 30303-1227

Telephone: 404-523-2721

Facsimile:

Attorneys for Proposed Intervening Defendants

ACLU, Howard Simon, Susan Watson, Joyce

Hamilton Henry, and Benetta Standly

(Service by CMlECF)

Miguel De Grandy

mad@degrandylaw.com

800 Douglas Road, Suite 850

Coral Gables, Florida 33134-2088

Telephone: 305-444-7737

Facsimile: 305-443-2616

George N. Meros, Jr.

gmeros@gray-robinson.com

Allen C. Winsor

awinsor@gray-robinson.com

Gray Robinson P.A.

Post Office Box 11189

Tallahassee, Florida 32302-1189

Telephone: 850-577-9090

Facsimile: 850-577-3311

Attorneys for Proposed Intervenor The Florida House

ofRepresentatives

(Service by CMlECF)


047


Case 1:10-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 2 of 10

1. Jon L. Mills is a member in good standing ofThe Florida Bar and the U.S.

Court ofAppeals for the Eleventh Circuit. He is not admitted to practice in the U.S.

District Court for the Southern District of Florida.

2. Movant, Carl E. Goldfarb ofBoies, Schiller & Flexner LLP, 401 East Las

alas Boulevard, Suite 1200, Fort Lauderdale, Florida 33301, (954) 356-0011, is a

member in good standing ofThe Florida Bar and the u.S. District Court ofthe Southern

District ofFlorida, maintains an office in this State for the practice oflaw, and is

authorized to file through the Court's electronic filing system. Movant consents to be

designated as a member ofthe Bar ofthis Court with whom the Court and opposing

counsel may readily communicate regarding the conduct ofthe case, upon whom filings

shall be served, who shall be required to electronically file all documents and things that

may be filed electronically, and who shall be responsible for filing documents in

compliance with the CMlECF Administrative Procedures.

3. Jon L. Mills has made payment ofthis Court's $75 fee. A certification in

accordance with Rule 4(b) ofthe Court's Special Rules Governing the Admission and

Practice ofAttorneys is attached hereto.

4. Jon L. Mills, by and through designated counsel and pursuant to Section

2B ofthis Court's CM/ECF Administrative Procedures, hereby requests the Court to

provide Notice ofElectronic Filings to Jon L. Mills at email address:jmills@bsfllp.com.

WHEREFORE, Carl E. Goldfarb moves this Court to enter an Order permitting

Jon L. Mills to appear before this Court on behalfofthe State Legislators for all purposes

relating to the proceedings in this action and directing the Clerk to provide notice of

electronic filings to Jon L. Mills.


Case 1:10-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 3 of 10

CERTIFICATE OF GOOD FAITH CONFERENCE

I hereby certify that counsel for the State Legislators has conferred with all parties

and all potential intervenors in a good faith effort to resolve the issues raised in the

motion and states that Plaintiffs, proposed Defendant-Intervenors NAACP parties,

proposed Defendant-Intervenors ACLU parties, and proposed Plaintiff-Intervenor the

Florida House ofRepresentatives, do not object to the Motion.

JON L. MILLS

Fla. Bar No. 148286

jmills@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

100 Southeast Second Street

Suite 2800

Miami, Florida 33131

Telephone: (305) 539-8400

Facsimile: (305) 539-1307

JOSEPH W. HATCHETT

Fla. Bar No. 34486

joseph.hatchett@akerman.com

AKERMAN SENTERFITT

106 East College Avenue

12th Floor

Tallahassee, Florida 32301

Telephone: (850) 224-9634

Facsimile: (850) 222-0103

Respectfully submitted,

STU RT . ING

Fla. Bar No. 377325

ssinger@bsfllp.com

CARL E. GOLDFARB

Fla. Bar No. 125891

cgoldfarb@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

401 East Las alas Boulevard

Suite 1200

Fort Lauderdale, Florida 33301

Telephone: (954) 356-0011

Facsimile: (954) 356-0022

KAREN C. DYER

Fla. Bar No. 716324

kdyer@bsfllp.com

GARY K. HARRIS

Fla. Bar No. 0065358

gharris@bsfllp.com

BOIES, SCHILLER & FLEXNER LLP

121 South Orange Avenue

Suite 840

Orlando, Florida 32801

Telephone: (407) 425-7118

Facsimile: (407) 425-7047

Attorneysfor the State Legislators


Case 1: 10-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 4 of 10

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy ofthe foregoing Motion To Appear

Pro Hac Vice, Consent To Designation, And Request To Electronically Receive Notices

OfElectronic Filing was served by electronic and first class mail to the counsel identified

on the attached Service List on March 2, 2011.


Case 1: 10-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 5 of 10

SERVICE LIST

Diaz-Balart and Brown v. State ofFlorida

Case No. lO-CV-23968-UNGARO

United States District Court, Southern District of Florida

Stephen M. Cody

stcody@stephencody.com

800 South Douglas Road, Suite 850

Coral Gables, Florida 33 134-2088

Telephone: 305-416-3135

Facsimile: 305-416-3153

Attorney for Plaintiffs Diaz-Balart and Corrine Brown

Eric R, Haren

eharen@jenner.com

Michael B. DeSanctis

mdesanctis@jenner.com

Paul Smith

psmith@jenner.com

Jenner & Block, LLP

1099 New York Avenue, NW

Washington, DC 20001

Telephone: 202-639-6000

Facsimile: 202-639-6066

Stephen Frederick Rosenthal

srosenthal@podhurst.com

Podhurst Orseck Josefsberg, t:t al

City National Bank Building

25 West Flagler Street, Suite 800

Miami, FL 33130-1780

Telephone: 305-358-2800

Facsimile: 305-358-2382

J. Gerald Hebert

GHebert@campaignlegalcenter.orgt

191 Somervelle Street, Suite 405

Alexandria, Virginia 22304

Telephone: 703-628-4673

Facsimile: 703-567-5876

Attorneys for Proposed Intervening Defendants

Florida State Conference of NAACP Branches,

Democracia Ahora, Leon W. Russell, Patricia T.

Spencer, Carolyn H. Collins, Edwin Enciso, Stephen

Easdale

Randall C. Marshall

nnarshall@aclutl.org

American Civil Liberties Union

Foundation of Florida

4500 Biscayne Boulevard, Suite 340

Miami, florida 33137-3227

Telephone: 786-363-2700

facsimile: 786-363-1108

Moffatt Laughlin McDonald

Imcdonald@aclu.org

American Civil Liberties Union

Foundation Inc.

230 Peachtree Street, NW, Suite 1440

Atlanta, Gcorgia 30303-1227

Telephone: 404-523-2721

Facsimile:

Attorneys for Proposed Intervening Defendants

ACLU, Howard Simon, Susan Watson, Joyce

Hamilton Henry, and Benetta Standly

Miguel De Grandy

mad@degrandylaw.com

800 Douglas Road, Suite 850

Coral Gables, florida 33134-2088

Telephone: 305-444-7737

facsimile: 305-443-2616

George N. Meros, Jr.

gmeros@gray-robinsoll.com

Allen C. Winsor

awinsor@gray-robinson.com

Gray Robinson P.A.

Post Office Box 11189

Tallahassee, Florida 32302-1189

Telephone: 850-577-9090

Facsimile: 850-577-3311

Attorneys for Proposed Intervenor The Florida House

of Representatives


Case 1:1 0-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 6 of 10


Case 1: 10-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 7 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MARIO DIAZ-BALART and CORRINE )

BROWN, )

)

Plaintiffs, )

)

vs. )

)

RICK SCOTT, in his official capacity as )

Governor ofthe State ofFlorida, and )

KURT S. BROWNING, in his official )

capacity as Secretary ofthe State of )

Florida, )

)

Defendants, )

)

and )

)

ARTHENIA L. JOYNER, JANET CRUZ, )

LUIS R. GARCIA, JR., JOSEPH A. )

GIBBONS, and PERRY E. THURSTON, )

JR., )

)

Defendant-Intervenors. )

CERTIFICATION OF JON L. MILLS

Case No. IO-CV-23968-UNGARO

Jon L. Mills, Esquire, pursuant to Rule 4(b) ofthe Court's Special Rules Governing

the Admission and Practice ofAttorneys, hereby certifies that (I) I have studied the Local

Rules ofthe U.S. District Court for the Southern District ofFlorida; and (2) I am a member

in good standing ofThe Florida Bar and the U.S. Court ofAppeals for the Eleventh

Circuit.


Case 1:1 0-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 8 of 10


Case 1: 10-cv-23968-UU Document 47 Entered on FLSD Docket 03/03/2011 Page 10 of 10

The Motion is GRANTED. Jon L. Mills may appear and participate in this action

on behalfofproposed Defendant-Intevenors Arthenia L. Joyner, Janet Cruz, Luis R.

Garcia, Jr., Joseph A. Gibbons, and Perry E. Thurston, Jr. The Clerk shall provide

electronic notification ofall electronic filings to Jon L. Mills at jmills@bsfllp.com.

DONE AND ORDERED in Chambers at , Florida, this_

day of _

Copies furnished to:

All Counsel ofRecord (via electronic filing)

United States District Judge


048


Case 1:10-cv-23968-UU Document 48 Entered on FLSD Docket 03/07/2011 Page 1 of 1

MARIO DIAZ-BALART and

CORRINE BROWN,

v.

Plaintiffs,

STATE OF FLORIDA, et ai.,

Defendants.

--------------_/

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 1O-23968-CIV-UNGARO

ORDER GRANTING MOTIONS TO APPEAR PRO HAC VICE

THIS CAUSE is before the Court upon the Motion to Appear Pro Hac Vice (D.E. 47).

THE COURT has considered the Motions and the pertinent portions ofthe record and is

otherwise fully advised in the premises. Accordingly, it is

2011.

ORDERED AND ADJUDGED that said Motion (D.E. 47) is GRANTED.

DONE AND ORDERED in Chambers at Miami, Florida, this _7th_ day ofMarch,

copies provided:

counsel ofrecord

URSULA UNGARO

UNITED STATES DISTRICT JUDGE


049


Case 1: 10-cv-23968-U U Document 49 Entered on FLSD Docket 03/08/2011 Page 1 of 2

MARIO DIAZ-BALART and CORRINE

BROWN,

vs.

Plaintiffs,

RICK SCOTT, in his official capacity as

Governor ofthe State ofFlorida, et aI.,

Defendants.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 10 - CV- 23968 -UNGARO

PLAINTIFFS' NOTICE OF SUPPLEMENTAL AUTHORITY

Plaintiffs Mario Diaz-Balart and Corrine Brown, by and through their undersigned counsel

submits the attached opinion ofthe Eleventh Circuit Court ofAppeal in Grizzle v. Kemp, -- F.3d --, Case

No. 10-12176 (11 th Cir. Ct. ofApp., March 8, 2011) as supplemental authority to their briefin response

to the Court's Order to Show Cause related to jurisdiction.

In Grizzle, the court held that

Pursuant to the Eleventh Amendment, a state may not be sued in federal

court unless it waives its sovereign immunity or its immunity is abrogated

by an act ofCongress under section 5 ofthe Fourteenth Amendment.

Kimel v. Florida Ed. ofRegents, 528 U.S. 62 (2000); Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 55-57 (1996); Hans v. Louisiana, 134 U.S.

1 (1890). Under the doctrine enunciated in Ex Parte Young, 209 U.S. 123,

however, a suit alleging a violation ofthe federal constitution against a

state official in his official capacity for injunctive reliefon a prospective

basis is not a suit against the state, and, accordingly, does not violate the

Eleventh Amendment. Id. at 168; Frew ex rei. Frew v. Hawkins, 540 U.S.

431,437 (2004).

A state official is subject to suit in his official capacity when his office

imbues him with the responsibility to enforce the law or laws at issue in

the suit. See Young, 209 U.S. at 161. In Ex Parte Young, the Supreme

Court held that, as the duties ofthe attorney general ofMinnesota under

both common law and statute included ''the right and the power to enforce


Case 1: 10-cv-23968-UU Document 49 Entered on FLSD Docket 03/08/2011 Page 2 of 2

the statutes ofthe state, including ... the act in question," the attorney

general was a proper party. Id.

Grizzle at 9. In the instant case, the Second Amended Complaint has been brought against the Governor

ofthe State ofFlorida and the Secretary ofState, both ofwhom have official duties with regard to

elections in the State ofFlorida.

Because the Eleventh Circuit released its opinion in Grizzle on March 8, 2011, it was impossible

to include in the Plaintiffs' prior filed memorandum in response to the Order to Show Case.

STEPHEN M. CODY, ESQ.

16610 SW 82 Court

Palmetto Bay, FL 33157

Telephone: (305) 753:..2250

Fax: (305) 468-6421

Email: stcody@stephencody.com

s/Stephen M. Cody

CERTIFICATE OF SERVICE

Fla. Bar No. 334685

I HEREBY CERTIFY that on March 8, 2011, I electronically filed the foregoing document with

the Clerk ofthe Court using CMlECF.

2

s/Stephen M. Cody


Case 1:10-cv-23968-U U Document 49-1 Entered on FLSD Docket 03/08/2011 Page 1 of 26

LAMAR GRIZZLE,

KELVIN SIMMONS,

IN THE UNITED STATES COURT OF APPEALS

[PUBLISH]

FOR THE ELEVENTH CIRCUIT FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 10-12176 MARCH 8, 2011

JOHN LEY

CLERK

D. C. Docket No. 4:l0-cv-0007-HLM

versus

HONORABLE BRIAN KEMP,

in his official capacity as Secretary of State ofGeorgia

and Chairperson of the Georgia State Election Board,

Plaintiffs-Appellees,

Defendant-Appellant,

THE STATE ELECTION BOARD OF THE STATE OF GEORGIA, et al.

Appeal from the United States District Court

for the Northern District of Georgia

(March 8, 2011)

Defendants.


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 2 of 26

Before TJOFLAT, ANDERSON and ALARCON,* Circuit Judges.

ALARCON, Circuit Judge:

In this appeal, we must determine whether the District Court erred in

applying the strict scrutiny standard in reviewing the Plaintiffs' claims under the

First and Fourteenth Amendments in issuing a preliminarily injunction against the

Honorable Brian Kemp, the Secretary of State of Georgia (the "Secretary of

State"), in his official capacity, and the County Executive Committee ofthe

Bartow County Republican Party (the "Republican Party"), enjoining the

enforcement or application ofthe portion ofGeorgia Code Ann. § 20-2-51(c)(2)

(2009) that precludes relatives of certain employees of a school system from

serving as members of that district's board of education. We must also decide

whether the District Court erred in holding that a case or controversy exists with

regard to the Secretary of State.

We reverse the order granting a preliminary injunction because we conclude

that the District Court erred in reviewing the Plaintiffs' First and Fourteenth

Amendment claims under the strict scrutiny standard. As the Secretary of State is

the chairperson of the State Election Board and the State Election Board is charged

with enforcing Georgia's election code under state law, we conclude that the

*Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting

by designation.

2


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 3 of 26

Secretary of State is a proper party in this action for injunctive and declaratory

relief pursuant to Ex Parte Young, 209 U.S. 123 (1908).

I

A

The facts in this matter are undisputed. Plaintiffs Lamar Grizzle and Kelvin

Simmons are both Georgia residents who served on school boards in their

respective communities at the time this action was filed. Grizzle is a member and

currently Chairman of the Board of Education ofBartow County, Georgia, a

position to which he was first elected in November 2002 and re-elected in 2006. 2

Grizzle's daughter is an assistant principal at Pine Log Elementary School, which

is located within the Bartow County school district.

Simmons was a member of the Board ofEducation of the City of Gainsville,

Georgia from 1991 through 2009. His wife is an assistant principal at Gainsville

Middle School. Although he intended to run for re-election in November 2009, he

was disqualified due to the passage of2009 Georgia Laws 164 ("HB 251 ").

2In compliance with the District Court's preliminary injunction in this matter, Grizzle

was permitted to qualify for the Republican primary during the fourth week ofApril 2010. He

was re-elected in November 2010.

3


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 4 of 26

HB 251 was enacted by the State of Georgia and went into effect on May 5,

2009. HB 251 amended Georgia Code Ann. § 20-2-51 by adding the following as

subsection (c)(2):

No person who has an immediate family member sitting

on a local board of education or serving as the local

school superintendent or as a principal, assistant

principal, or system administrative staff in the local

school system shall be eligible to serve as a member of

such local board of education. As used in this paragraph,

the term "immediate family member" means a spouse,

child, sibling, or parent or the spouse of a child, sibling,

or parent. This paragraph shall apply only to local board

of education members elected or appointed on or after

July 1, 2009. Nothing in this Code section shall affect

the employment of any person who is employed by a

local school system on or before July 1,2009, or who is

employed by a local school system when an immediate

family member becomes a local board of education

member for that school system.

Ga. Code Ann. § 20-2-51(c)(2) (2009), amended by Act ofMay 25,2010,2010 Ga.

Laws 468. 3

B

On January 11,2009, the Plaintiffs filed an action in the District Court for

the Northem District of Georgia against the Honorable Brian Kemp, Secretary of

3Plaintiffs in this litigation contest the version ofGeorgia Code Ann. § 20-2-51(c)(2)

amended by HB 251 but prior to the amendments ofMay 25,2010. For ease, this opinion refers

to the statute at issue as "section 20-2-51(c)(2)."

4


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 5 of 26

State of Georgia, in his official capacity,4 the Election Board of the State of

Georgia,S and the County Executive Committee ofthe Bartow County Republican

Party,6 alleging, inter alia, that the "nepotism provision" of section 20-2-51 (c)(2),

as applied and on its face, violates the equal protection guarantee of the Fourteenth

Amendment. They additionally alleged that that provision violates their right of

free association, both as voters and as candidates for office, under the First

Amendment. Plaintiffs requested, inter alia, that the court declare section

20-2-51 (c)(2) unconstitutional; that it grant a preliminary injunction against

enforcement of that section prior to the fourth week of April 2010, the deadline for

candidate qualification for party primary elections; and that the Court also grant a

permanent injunction against the section's enforcement.

4"There is created a state board to be known as the State Election Board, to be composed

ofthe Secretary ofState, an elector to be elected by a majority vote ofthe Senate ofthe General

Assembly at its regular session held in each odd-numbered year, an elector to be elected by a

majority vote ofthe House ofRepresentatives ofthe General Assembly at its regular session

held in each odd-numbered year, and a member ofeach political party to be nominated and

appointed in the manner provided in this Code section " Ga. Code Ann. § 21-2-30(a). "The

Secretary ofState shall be the chairperson ofthe board " Id. at (b).

S"The State Election Board is vested with the power to issue orders ... directing

compliance with [Chapter 2 ofthe Georgia Code] or prohibiting the actual or threatened

commission ofany conduct constituting a violation [ofthat Chapter] ...." Ga. Code Ann. §

21-2-33.1(a).

6Under Georgia law, county executive committees ofthe respective political parties are

charged with certifying to the Secretary ofState those candidates who have qualified for the

primary elections. Ga. Code Ann. § 21-2-154(a).

5


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 6 of 26

On January 30,2010, Plaintiffs requested that the District Court enter an

Order to Show Cause scheduling a hearing for a preliminary injunction. The Court

denied their request on January 21,2010. On the same day, the Plaintiffs filed a

motion for a preliminary injunction and requested a hearing on their motion prior

to the candidate qualifying period of April 26 to 30, 2010.

The Republican Party, on February 5, 2010, filed a motion to be excused

from the case. It indicated that it would "abide by the statute as written or by any

injunction entered by the Court." Mot. to be Excused at 2. The District Court

granted the Republican Party's motion on February 12,2010.

On February 12,2010, the Secretary of State and the State Election Board

jointly filed a motion to dismiss them from this action. In an order issued on

March 15,2010, the District Court granted the State Election Board's motion to be

dismissed from this action, and denied the motion to dismiss the Secretary of State

as a party.

The Secretary of State filed an answer to the complaint on March 29,2010.

On Apri121, 2010, the District Court issued an Order granting in part and denying

in part Plaintiffs' motion for a preliminary injunction. The District Court

preliminarily enjoined the Secretary of State and the Republican Party "from

enforcing or applying the portion of [Georgia Code Ann.] § 20-2-51(c)(2) that

6


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 7 of 26

precludes relatives of certain employees of a school system from running for

election to the school board governing that system, and from precluding Plaintiff

Grizzle or any other otherwise qualified individual from running for election to a

school board position within Georgia." Id. at 60-61. It denied relief as to

Plaintiffs' other claims, not pertinent to this appeal, and again rejected the

Secretary of State's contention that he is not a proper party in this action.

The Secretary of State timely appealed from the District Court's April 21

order. This Court has jurisdiction over this interlocutory appeal pursuant to 28

U.S.C. § 1292(a)(1).

II

The Secretary of State contends the District Court erred in holding that he is

a proper party in this action, and, accordingly, in entering a preliminary injunction

against him. He additionally argues that the District Court erred in applying strict

scrutiny to the Plaintiffs' claims under the First and Fourteenth Amendments in its

assessment ofthe Plaintiffs' Motion for Preliminary Injunction. Because the case­

or-controversy requirement is jurisdictional in nature, we address that issue first.

A

The Secretary of State asserts that, because he cannot qualify, challenge or

certify candidates for local boards of education under Georgia's election code, he

7


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 8 of 26

is not a proper party in this lawsuit. He maintains that, under Georgia's election

code, in partisan elections such as those for local boards of education, 7 a

candidate's party is charged with determining the qualifications of aspirants for

office. Ga. Code Ann. § 21-2-153.I(a).8 Challenges to candidates to local office

may be mounted only by electors or the elections superintendent. § 21-2-6(b).9

The elections superintendent then certifies the election results to the Secretary of

State as well as to the State School Superintendent. § 20-2-53. 10

The Secretary of State contends that, "[b]ecause he must accept, and cannot

alter, the qualifications and certification of Grizzle and Simmons [under Georgia's

7The court accepts the parties' concession that elections to local boards ofeducation in

Georgia are partisan. See Appellees' Br. 6 (stating that the Bartow County school board election

is partisan); see Appellant's Br. 4 ("The facts ofthis case ... are not in dispute.").

8"Unless otherwise provided by law, all candidates for party nomination in a municipal

primary shall qualify as such candidates in accordance with the rules oftheir party." § 21-2­

153.1(a).

9"The superintendent upon his or her own motion may challenge the qualifications ofany

[county or municipal] candidate [certified by the county or municipal executive committee,

respectively, ofa political party or who files a notice ofcandidacy] at any time prior to the

election ofsuch candidate. Within two weeks after the deadline for qualifying, any elector who

is eligible to vote for any such candidate may challenge the qualifications ofthe candidate by

filing a written complaint with the superintendent giving the reasons why the elector believes the

candidate is not qualified to seek and hold the public office for which the candidate is

offering...." § 21-2-6(b).

1O"[I]t shall be the duty ofthe elections superintendent ofeach system or other political

subdivision to transmit to the Secretary ofState and to the State School Superintendent a

certified statement ofthe election ofmembers ofa local board ofeducation...." § 20-2-53.

8


Case 1:10-cv-2396S-UU Document 49-1 Entered on FLSD Docket 03/0S/2011 Page 9 of 26

election code], he cannot be sued over a statute designed to prevent such

occurrence." Appellant's Br. 11.

Pursuant to the Eleventh Amendment, a state may not be sued in federal

court unless it waives its sovereign immunity or its immunity is abrogated by an

act of Congress under section 5 of the Fourteenth Amendment. Kimel v. Florida

Bd. ofRegents, 528 U.S. 62 (2000); Seminole Tribe ofFlorida v. Florida, 517 U.S.

44,55-57 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). Under the doctrine

enunciated in Ex Parte Young, 209 U.S. 123, however, a suit alleging a violation of

the federal constitution against a state official in his official capacity for injunctive

relief on a prospective basis is not a suit against the state, and, accordingly, does

not violate the Eleventh Amendment. Id. at 168; Frew ex reI. Frew v. Hawkins,

540 U.S. 431, 437 (2004).

A state official is subject to suit in his official capacity when his office

imbues him with the responsibility to enforce the law or laws at issue in the suit.

See Young, 209 U.S. at 161. In Ex Parte Young, the Supreme Court held that, as

the duties ofthe attorney general ofMinnesota under both common law and statute

included "the right and the power to enforce the statutes ofthe state, including

... the act in question," the attorney general was a proper party. Id.

9


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 10 of 26

In this matter, the Secretary of State is, by statute, a member and the

chairperson of the State Election Board. Ga. Code Ann. § 21-2-30(a) & (d).

Under Georgia law, "[t]he State Election Board is vested with the power to issue

orders ... directing compliance with [Chapter 2 of Georgia's election code] or

prohibiting the actual or threatened commission of any conduct constituting a

violation [of Chapter 2] ...." § 21-2-33.I(a). Partisan primary elections,

including those for local boards of education, fall within Chapter 2 of the state

election code. See Ga. Stat. tit. 21, ch. 2 (governing "Elections and Primaries

Generally").

Plaintiffs here seek prospective injunctive relief against the Secretary of

State in his official capacity. Because their suit falls within the Ex Parte Young

exception, the Eleventh Amendment does not bar their suit. Although the

Secretary of State cannot directly qualify or challenge candidates for local boards

of education or certify the results of those elections, as a member and the

chairperson of the State Election Board, he has both the power and the duty to

ensure that the entities charged with those responsibilities comply with Georgia's

election code in carrying out those tasks. Pursuant to Ex Parte Young, "[h]is

power by virtue of his office sufficiently connect[s] him with the duty of

enforcement to make him a proper party to a suit of the nature of the one now

10


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 11 of 26

before" this Court. 209 U.S. at 161. The District Court therefore did not err in

holding that the Secretary of State is a proper party in this action.

B

1

The Secretary of State also contends the District Court erred in determining

that the strict scrutiny standard applies to the Plaintiffs' claims under the First and

Fourteenth Amendments. He argues that, due to this error, the issuance of a

preliminary injunction was improper.

"Although we review the district court's entry of a preliminary injunction

under a deferential abuse-of-discretion standard, the legal conclusions upon which

an injunction is based are subject to more exacting de novo review." Bank ofAm.

Nat. Ass'n v. Colonial Bank, 604 F.3d 1239,1242-43 (11th Cir. 2010).

The moving party must demonstrate the following in order for the District

Court to grant its motion for a preliminary injunction: "(1) a substantial likelihood

of success on the merits of the underlying case, (2) the movant will suffer

irreparable harm in the absence of an injunction, (3) the harm suffered by the

movant in the absence of an injunction would exceed the harm suffered by the

opposing party if the injunction issued, and (4) an injunction would not disserve

the public interest." N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211,

11


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 12 of 26

1217 (11th Cir. 2008). The Secretary of State maintains that, because the District

Court applied the incorrect standard of review to Plaintiffs' constitutional claims,

Plaintiffs have not demonstrated a likelihood of success on the merits. Our inquiry

thus begins and ends with this first prong of the test.

2

In its analysis ofthe standard it should apply in determining whether section

20-2-51(c)(2) violates the Equal Protection Clause of the Fourteenth Amendment,

the District Court stated that "the right to seek and hold public office is not a

fundamental right protected by the Constitution." April 21 Order at 34 (internal

citations omitted). Nonetheless, it found that section 20-2-51 (c)(2)

entirely precludes Plaintiffs from appearing on the ballot

as candidates for their respective local school boards,

and, consequently, its effect on Plaintiffs is extreme.

Moreover, it is extremely likely that [Georgia Code Ann.

§ 20-2-51(c)(2)] will severely burden the rights of

numerous Georgia voters, as it likely will bar individuals

across the State from running as candidates for their local

school boards, thereby depriving voters ofthe right to

vote for the candidates of their choice.

[d. at 37-38. Holding that section 20-2-51(c)(2) thus severely impacted "ballot

access" and "the right of association," the District Court applied strict scrutiny to

Plaintiffs' claims. [d.

12


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 13 of 26

The District Court assumed, for purposes of its review, that the Secretary of

State's proposed interest-the prevention of nepotism-is a compelling state interest.

It stated that

the statute ... is not narrowly tailored to serve that

purpose. Specifically, the statute is overly broad, because

it simply excludes certain relatives from office, rather

than addressing the real problem of nepotism-possible

biased decisions of school board members. The statute,

by the same token, is also too narrow, because it fails to

address other family relationships that might cause biased

decisions on the part of a school board member.

April 21 Order at 39. Additionally, the District Court noted,

Georgia already has statutes in place that address many

nepotism concerns, including: (1) [Georgia Code Ann.]

§ 20-2-58.1, which precludes school board members

from voting on employment decisions for relatives; (2)

[Georgia Code Ann.] § 45-10-3, which sets forth a code

of ethics for school boards members and includes a

provision that members must "[n]ever discriminate by the

dispensing of special favors or privileges to anyone,

whether or not for remuneration;" and (3) [Georgia Code

Ann.] § 45-10-4, which permits the Governor to remove

an official who breaches the provisions of [Georgia Code

Ann.] § 45-10-3.

Id. at 39-40 (quoting Ga. Code Ann. § 45-10-3).

The District Court stated that, "[a]pplying strict scrutiny, [Georgia Code

Ann.] § 20-2-51(c)(2) fails to pass muster." Id. at 38. It thus held that the

Plaintiffs had shown a substantial likelihood of success on the merits at trial and

13


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 14 of 26

granted their motion for a preliminary injunction.

In support of the District Court's conclusion, Plaintiffs maintain that

the nepotism provision violates their right to equal protection under the Fourteenth

Amendment because it treats them differently from similarly situated persons,

namely, individuals desiring to run for the school board who do not have family

members employed in certain positions in the relevant school system. With regard

to their claims under the First Amendment, Plaintiffs assert that the provision

violates their right to free association because it affects their right to seek office as

school board members as well as the right ofvoters to vote for them. They argue

that the District Court did not err in applying strict scrutiny because section

20-2-51(c)(2) completely bars them from running for office, and thus constitutes a

"severe restriction" on their right to be candidates as well as on voters' ballot

access rights. They additionally note that the restriction is imposed based on

matters over which they have no control.

The Secretary of State contends that "the district court' erred in holding

[Georgia Code Ann.] § 20-2-51(c)(2) unconstitutional [because] [t]here is no

severe burden on Grizzle's and Simmons [sic] First and Fourteenth Amendment

[r]ights." Appellant's Br. 24. He argues that this case is analogous to those in

which courts have held that statutes requiring an individual to resign from office in

14


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 15 of 26

order to appear on the ballot for a different office ("resign-to-run" statutes) warrant

only rational basis review.

3

The Supreme Court has not "attached such fundamental status to candidacy

as to invoke a rigorous standard of review." Bullock v. Carter, 405 U.S. 134, 142­

43 (1972). Recognizing, however, that the right to vote is fundamental, the Court

has noted that "the rights of voters and the rights ofcandidates do not lend

themselves to neat separation; laws that affect candidates always have at least some

theoretical, correlative effect on voters." Id. at 143. But "[n]ot all restrictions

imposed by the States on candidates' eligibility for the ballot impose

constitutionally suspect burdens on voters' rights to associate or to choose among

candidates." Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also Bullock,

405 U.S. at 143 ("not every limitation or incidental burden on the exercise of

voting rights is subject to a stringent standard ofreview."). A restriction on

candidacy implicates a fundamental right only if "the challenged restriction

unfairly or unnecessarily burdens the 'availability ofpolitical opportunity. '"

Anderson, 460 U.S. at 793 (quoting Clements v. Fashing, 457 U.S. 957, 964 (1982)

(plurality opinion)); see also Morial v. Judiciary Comm 'n ofLouisiana, 565 F.2d

295,301 (11th Cir. 1977) (Candidacy is "an important, ifnot constitutionally

15


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 16 of 26

'fundamental,' right.").

In reviewing challenges to restrictions on candidacy and ballot access under

the First and Fourteenth Amendments, we "must first consider 'the character and

magnitude of the asserted injury to the rights protected by the First and Fourteenth

Amendments that the [candidate] seeks to vindicate.'" Swanson v. Worley, 490

F.3d 894, 902 (1Ith Cir. 2007) (quoting Anderson, 460 U.S. at 789). When the

plaintiffs' rights are subject to "severe" restrictions, those restrictions survive only

ifthey are '''narrowly tailored and advance[] a compelling state interest.'" ld. at

903 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351,358 (1997));

see Burdick v. Takushi, 504 U.S. 428,434 (1992) ("severe" regulation must be

"'narrowly drawn to advance a state interest of compelling importance."') (quoting

Norman v. Reed, 502 U.S. 279,289 (1992)). By contrast, "a State's important

regulatory interests" are generally sufficient to justify a state election law which

burdens the First and Fourteenth Amendment rights of candidates and voters with

restrictions which are "reasonable" and "nondiscriminatory." Swanson, 490 F.3d

at 903 (citing Burdick, 504 U.S. at 434). "Lesser burdens ... trigger less exacting

review ...." ld. Thus, in order to assess whether, on the current record, strict

scrutiny applies to the Plaintiffs' claims under the First and Fourteenth

Amendments, we must determine whether the restriction imposed by section

16


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 17 of 26

20-2-51 (c)(2) is "severe" based on the "character and magnitude" of Plaintiffs'

asserted harm.

In Morial v. Judiciary Commission ofLouisiana, 565 F.2d 295 (5th Cir.

1977),11 the former Fifth Circuit considered whether a Louisiana statute and canon

ofjudicial conduct requiring judges to resign from their current office before

running for a non-judicial position comported with the plaintiffs' rights to free

speech and freedom of association under the First Amendment and their right to

equal protection of the laws under the Fourteenth Amendment. Id. at 299-307.

The Fifth Circuit stated that, although Judge Morial had a "substantial" First

Amendment interest in becoming a candidate, "in order to judge the substantiality

of the impairment," that interest must be weighed in light of his interests left

unaffected by the Louisiana statute. Id. at 301. The Court noted that

Louisiana's resign-to-run requirement does not burden

[Judge Morial's] right to vote for the candidate of his

choice or to make statements regarding his private

opinions on public issues outside a campaign context; nor

does it penalize his belief in any particular idea. These

are core first amendment values.

Id.; see also Clements, 457 U.S. at 972 (no first amendment violation where state

constitutional provisions "in no way restrict appellees' ability to participate in the

11Decisions ofthe Fifth Circuit rendered prior to October 1, 1981 are binding precedent

ofthis Circuit. Bonner v. City ofPrichard, 661 F.2d 1206 (llth Cir. 1981).

17


Case 1: 10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 18 of 26

political campaigns of third parties. They limit neither political contributions nor

expenditures. They do not preclude appellees from holding an office in a political

party.... [A]ppellees may distribute campaign literature and may make speeches

on behalfof a candidate.") The Fifth Circuit also stated that "[t]he impact of the

resign-to-run requirement upon voters is even less substantial[,]" as it did not

exclude candidates based on their viewpoint, or their membership in an identifiable

group, such as the poor or minority parties. Morial, 565 F.2d at 301-02 (citations

omitted).

In addressing the level of scrutiny appropriate to review the plaintiffs'

challenge to the Louisiana statute under the First Amendment, the Court stated in

Morial,

The impairment of the plaintiffs' interests in free

expression and political association stemming from

enforcement of the resignation rule is thus not

sufficiently grievous to require the strictest constitutional

scrutiny. Neither is the impairment insubstantial or

innocuous; a level of scrutiny which guarded against only

those measures offending logic would be a gratuitous

insult to the seriousness ofthe interests involved in

becoming or supporting a candidate for public office.

Instead, we should employ a level of scrutiny which

requires the state to show a reasonable necessity for

requiring judges to resign before becoming candidates for

elective judicial office.

Id. at 302 (internal citations omitted).

18


Case 1:1 0-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 19 of 26

The Supreme Court considered the equal protection question at length in

Clements v. Fashing, 457 U.S. 957 (1982). The plaintiffs in Clements brought

both First Amendment and Fourteenth Amendment challenges to Article III, § 19

and Article XVI, § 65 of the Texas Constitution. Id. Article III, § 19 stated that

[n]o judge of any court, Secretary of State, Attorney

General, clerk of any court of record, or any person

holding a lucrative office under the United States, or this

State, or any foreign government shall during the term

for which he is elected or appointed, be eligible to the

[state] Legislature.

Id. at 960. Article XVI, § 65 provided for the automatic resignation of certain state

officers upon the announcement of their candidacy "in any General, Special or

Primary Election, for any office ofprofit or trust under the laws ofthis State or the

United States other than the office then held, at any time when the unexpired term

of the office then held shall exceed one (1) year[.]" Id. The Court noted that it had

"departed from traditional equal protection analysis" in cases involving

classifications based on economic status and in those burdening emerging, smaller,

or independent political parties or candidates. Id. at 964-65 (citations omitted).

The Supreme Court also stated in Clements that the concerns underlying

those cases-filing fees, invidious discrimination, and discrimination based on

viewpoint or political affiliation-did not apply to the matter before it. Id. at 964.

Addressing Article III, § 19, it held that the classification was not invidious,

19


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 20 of 26

arbitrary, or irrational and that the burden imposed on a Justice ofthe Peace by that

section-effectively, a maximum two-year waiting period between the end ofhis

current term in office and announcing his candidacy for the state legislature-was

de minimis. Id. at 967 (citing Storer v. Brown, 415 U.S. 724, 733-37 (1974) (no

constitutional violation where individual was disqualified from running in party

primary ifhe had been registered or affiliated with a different party within the

preceding twelve months)). "[T]his sort of insignificant interference with access to

the ballot need only rest on a rational predicate in order to survive a challenge

under the Equal Protection Clause." Id. at 968.

The Supreme Court further stated in Clements that, pursuant to Broadrick v.

Oklahoma, 413 U.S. 601, 607 (1973), the singling out ofparticular officeholders

for this restriction did not offended equal protection. Id. at 969. "'[T]he

legislature must have some leeway in determining which of its employment

positions require restrictions on partisan political activities and which may be left

unregulated. ", Id. (quoting Broadrick, 413 U.S. at 607 n.5.). The state may,

consistent with equal protection, regulate "one step at a time, addressing itself to

the phase of the problem which seems most acute." Id. at 970.

The Supreme Court likewise reviewed the classification behind Article XVI,

§ 65, the "resign-to-run" provision, for a "rational predicate." Id. Noting that there

20


Case 1: 10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 21 of 26

was no apparent "invidious purpose" behind the provision, it held that the

legislature's "one step at a time" approach was permissible under equal protection.

Id. at 970-71.

Reviewing the plaintiffs' First Amendment claims, the Supreme Court held

that they failed for the same reasons the plaintiffs' equal protection claims

failed-because the burden on their interests in candidacy was de minimis rather

than "severe." Id. It remarked that those claims additionally failed due to the

limited nature of the challenged restrictions on political activity. Id.

The Second Circuit, too, has confronted the constitutionality of "resign-to­

run" provisions, in Fletcher v. Marino, 882 F.2d 605 (2d Cir. 1989). In that case,

plaintiffs, who were members of a community school board, argued that aNew

York statute making current community school board members ineligible for

employment by any community school board or city board, and making certain

public officials ineligible for membership on community school boards violated,

inter alia, their right to freedom of association under the First Amendment. Id. at

608-10. The Second Circuit applied a lesser standard of scrutiny in its review of

the plaintiffs' claims. See id. at 613. The law, it stated, "does no more than

prohibit certain municipal employees, political party office holders and elected

officials from being community school board members. It does not stop anyone

21


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 22 of 26

from running for any office." Id.

The Second Circuit in Fletcher also evaluated the plaintiffs' First

Amendment claim as to infringement on the voters' right to choose a candidate

under a lesser standard of review. Id. at 614. The New York legislature, it held,

"has not prevented people with certain ideas from becoming candidates. It has not

prevented people from certain protected backgrounds from becoming candidates.

It has only prevented people holding certain jobs or certain party leadership

positions from becoming members of community school boards." Id.

The Plaintiffs here attempt to distinguish this case from Morial, Clements,

and Fletcher on two bases. Weare not persuaded.

Plaintiffs first maintain that section 20-2-51 (c)(2) "enacts a total ban from

elective office for the thousands of close relatives of existing school board

members, superintendents, principles [sic], assistant principals and 'system

administrative staff.'" Appellees' Br. 21. Plaintiffs overstate the point. Section

20-2-51(c)(2) prohibits them, and like individuals, only from running for the

school board governing the system in which certain family members are employed.

Plaintiffs may run for any other elected office; they may vote, distribute campaign

literature, voice their political opinions, and participate in and hold office in their

political party of choice. Under the balancing test articulated by this Court in

22


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 23 of 26

Swanson, the Plaintiffs' injury under the First Amendment is not so "severe" as to

require strict scrutiny.

Additionally, Plaintiffs suggest that the type of restriction at issue in this

matter-nepotism-warrants closer scrutiny than that afforded in the "resign-to-run"

cases. They argue that the plaintiffs in those cases were faced with a choice as to

whether to step down from their current posts in order to run for office under the

challenged law. Here, Plaintiffs have no control over their eligibility as candidates

for the desired school boards; their eligibility is entirely based on the employment

of their "immediate family member[s]." See Ga. Code Ann. § 20-2-51(c)(2).

This Court had occasion to consider the standard of review applicable to

anti-nepotism provisions specifically in Parks v. City a/Warner Robins, 43 F.3d

609 (l1th Cir. 1995). There, the plaintiff argued that a Georgia statute which

prohibited a city employee from working in the same department as a relative in a

supervisory position violated her right of intimate association under the First

Amendment, her substantive due process right to marry under the Fourteenth

Amendment, and her right to equal protection under the Fourteenth Amendment

due to its disparate impact on women. Id. at 612. In determining whether the

ordinance warranted strict scrutiny, this Court reviewed the effect of the restriction

under each constitutional provision, rather than considering a specific standard

23


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 24 of 26

generally applicable to anti-nepotism provisions. Id. Because the provision at

issue did not require a heightened standard of review, this Court analyzed the

plaintiffs' claims under the rational basis standard. Id. at 614-15. That section

20-2-51 (c)(2) combats nepotism therefore does not, in itself, subject it to strict

scrutiny review.

In asserting that equal protection analysis of section 20-2-51 (c)(2) demands

strict scrutiny, the Plaintiffs charge both that it is too narrow and that it is

overbroad. Plaintiffs argue that the statute's failure to address potential nepotism

by grandparents, aunts, uncles, cousins, and the like demonstrates that "this statute

was not drafted with 'nepotism' as the purpose[,]" "but rather was intended to cost

someone elective office." Appellees' Br. 22-23. On this record, we cannot say

that the statute was enacted with an invidious purpose; pursuant to Clements, the

State may regulate one step at a time in order to address what it deems the most

pressing issues. Plaintiffs' overbreadth argument similarly fails; that the statute

does not prevent nepotism in all its possible forms does not heighten the severity of

the restriction to necessitate strict scrutiny.

In addition, Plaintiffs argue that "the issue of nepotism can better be

addressed by specific rules relating to decisions regarding relatives ...."

Appellees' Br. 26. They note that Georgia already has statutes in place that

24


Case 1: 10-cv-23968-U U Document 49-1 Entered on FLSD Docket 03/08/2011 Page 25 of 26

regulate school board members with respect to decisions affecting relatives

employed by the school system, including ethics provisions that subject a board

member to removal for breach. However, whether nepotism is "better" addressed

in one manner or another is irrelevant to our inquiry here; the standard of review

we apply in assessing the statute at hand is not measured by reference to alternative

measures. See, e.g., Morial, 565 F.2d at 301-03 (determining the appropriate level

of scrutiny prior to analyzing whether the restriction at issue "[met] the test of

reasonable necessity"). The Plaintiffs' argument in this regard thus goes to the

question of whether Georgia Code Ann § 20-2-51 (c)(2) is reasonably necessary to

combat nepotism. Because we hold here that the District Court erred in applying

strict scrutiny, we do not reach this issue.

Conclusion

"Candidacy for office is one of the ultimate forms of political expression in

our society." Morial, 565 F.2d at 301. However, "[f]ar from recognizing

candidacy as a 'fundamental right,", the Supreme Court has stated "that the

existence ofbarriers to a candidate's access to the ballot'does not of itself compel

close scrutiny. ", Clements, 457 U.S. at 963 (quoting Bullock, 405 U.S. at 143).

Likewise, although "[v]oting is of the most fundamental significance under our

constitutional structure[,] [i]t does not follow ... that the right to vote in any

25


Case 1:10-cv-23968-UU Document 49-1 Entered on FLSD Docket 03/08/2011 Page 26 of 26

manner and the right to associate for political purposes through the ballot are

absolute." Burdick, 504 U.S. at 433 (internal citations and quotations omitted).

Only where candidacy or ballot access regulations severely burden the availability

ofpolitical opportunity do we apply strict scrutiny.

On the current record, the District Court erred in reviewing Plaintiffs'

constitutional claims under the strict scrutiny standard. Because the application of

strict scrutiny on review of the Plaintiffs' constitutional claims was error, Plaintiffs

have not demonstrated a likelihood of success on the merits, as required to obtain a

preliminary injunction. We note that, although the Republican Party has been

excused from appearing in this matter, our decision reversing the grant of a

preliminary injunction applies to both the Secretary of State and the Republican

Party. We express no view as to the merits of any other theory ofliability

Plaintiffs may wish to assert at any further proceedings before the District Court.

Pursuant to Ex Parte Young, 209 U.S. 123, the Secretary of State has the

duty and the power to enforce the State's election code. The District Court did not

err in holding that the Secretary of State is a proper party in this action.

AFFIRMED in part, and REVERSED in part.

26

More magazines by this user
Similar magazines